CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 octobre 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. 31968/96                       by Ilja FUKS                       against Germany           The European Commission of Human Rights (First Chamber) sitting in private on 23 October 1997, the following members being present:              Mrs    J. LIDDY, President            MM     M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. CONFORTI                  N. BRATZA                  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   17 April 1996 by Ilja FUKS against Germany and registered on 19 June 1996 under file No. 31968/96;         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 applicant, born in 1951, is a Ukrainian national.   When lodging his application, he was living in Berlin.   In the proceedings before the Commission, he is represented by Mr R. Portius and Mr T. Schmidt, lawyers practising in Berlin.         The facts of the case, as submitted by the applicant, may be summarised as follows.         In 1990 the applicant came to the Federal Republic of Germany and applied for refugee status, arguing his German origins.   The applicant's request was dismissed by the Berlin Municipality; administrative court proceedings are pending.         On 31 October 1994 the Berlin Municipality ordered the applicant's expulsion, pursuant to the relevant provisions of the Aliens Act (Ausländergesetz).   The applicant was ordered to leave Germany within one month and informed that, should he not leave voluntarily, his deportation would be ordered.         In its reasoning, the Municipality noted that on 9 July 1992 the Berlin Regional Court (Landgericht) had committed the applicant for trial on the charge of having acted as an accomplice to causing grievous bodily injury.   On 13 June 1992 the Regional Court, applying S. 153a of the Code of Criminal Procedure (Strafprozeßordnung), had discontinued the proceedings subject to the conditions that he paid a sum of money amounting to DEM 20,000 to the Treasury (Justizkasse) and compensation amounting to DEM 30,000 to the victim of the offence.         S. 153a of the Code of Criminal Procedure concerns the discontinuation of criminal proceedings subject to conditions and instructions (Auflagen und Weisungen).   According to its paragraph 1, the Public Prosecutor's Office (Staatsanwaltschaft) may, with the consent of the competent court and the accused, provisionally refrain from preferring an indictment relating to an offence (Vergehen) and at the same time order the accused (1) to take measures providing reparation, (2) to pay a sum of money to a charitable association or the Treasury, (3) to take other   measures or (4) to make maintenance payments of a particular amount, if such conditions and instructions can remove the public interest in prosecution and if this is not in conflict with the seriousness of the guilt.   If the accused fulfils the conditions and instructions, the act can no longer be prosecuted as an offence. Paragraph 2 provides that after indictment the court may, with the consent of both the public prosecutor's office and the accused, discontinue the proceedings until the end of the trial, during which the facts are finally assessed, and impose the same conditions and instructions as mentioned in paragraph 1.         The Municipality considered that the acts which formed the basis of the trial against him showed that the applicant was not willing to abide by the laws enacted for the protection of the public.   As to the offence in question, the Municipality stated that, as an accomplice, the applicant had abducted his sister's housekeeper whom they had suspected of theft.   They had brought her into the forest and had applied a brutal method to extort an admission of guilt and disclosure of the hiding-place of the money in question, namely putting a plastic bag over her head and thus repeatedly depriving her of oxygen. Eventually she had been brought to her apartment where they had continued to threaten her with violence.   Their victim had finally been scared to death and had jumped out of the window of her apartment, situated on the second floor.   She had suffered serious and lasting injuries.   The Municipality found that, in taking the law into his hands, he had seriously violated public safety and order.   His wrongdoing (Fehlverhalten) necessitated his expulsion.   Other foreigners should thereby be discouraged from engaging in such unlawful conduct.         As regards the applicant's argument that he had not been convicted of the offence in question, the Municipality considered that the Regional Court had discontinued the proceedings against him subject to conditions on the ground that the trial had repeatedly been delayed. It was unlikely that he would have made compensation payments to the victim if innocent.         In these and the following proceedings, the applicant was represented by counsel.         On 6 July 1995 the Berlin Administrative Court (Verwaltungs- gericht) dismissed the applicant's request for an interim injunction against his expulsion.         The Administrative Court found that on the basis of a summary examination of the case in the context of the injunction proceedings there were no reasons to doubt the lawfulness of the expulsion order. The Administrative Court recalled that under the relevant provisions of the Aliens Act, a foreigner could be expelled if he had committed more than a singular or minor breach of the law (Rechtsverstoß). Having regard to the course of the criminal proceedings against the applicant and their discontinuation pursuant to S. 153a of the Code of Criminal Procedure (Strafprozeßordnung), the Administrative Court found that these conditions were met in his case.   The Court confirmed that the fact that the applicant had eventually not been convicted did not prevent the Municipality from basing its expulsion decision on these events.   The Court recalled that, pursuant to the relevant legal provisions, only the breach of the law as such and not a criminal conviction was the condition for an expulsion.   In the Court's view, the applicant had committed the breach of the law in question.   While the applicant had always pleaded his innocence, the Court considered that, on the basis of the contents of the files, there were no reasonable doubts as to his participation in the events in the night of 26-27 January 1992.   The victim had been repeatedly questioned, including the questioning by a judge, and had charged the applicant with the offence.   There had been no substantial discrepancies in her statements.   Moreover, as a pre-condition for the discontinuation of the criminal proceedings, the applicant and the co-accused had been ordered to make important compensation payments to the victim. Moreover, the Regional Court had discontinued the proceedings pursuant to S. 153a of the Code of Criminal Procedure which required that the suspicion continued to exist and that such procedure was not in conflict with the seriousness of the guilt.   The criminal file showed that the proceedings had been discontinued mainly on account of the fact that the victim, due to her injuries, could not attend the trial for a considerable time and that the lengthy proceedings had been terminated on the basis of a settlement between the offenders and their victim.         The Administrative Court further considered that no other reasons, including the circumstance that the applicant's mother and his sister had meanwhile acquired German nationality, hindered his expulsion.         On 5 September 1995 the Berlin Administrative Court of Appeal (Oberverwaltungsgericht) dismissed the applicant's appeal (Beschwerde).         The applicant lodged a constitutional complaint (Verfassungs- beschwerde) with the   Federal Constitutional Court (Bundes- verfassungsgericht), arguing inter alia that the expulsion order ran counter to the presumption of innocence.         On 24 October 1995 the Federal Constitutional Court refused to entertain the applicant's constitutional complaint.   The decision was served on 31 October 1995.     COMPLAINTS         The applicant complains about the expulsion order issued against him on 31 October 1992.   He considers that the Municipality's reasoning in this decision amounts to a breach of the presumption of innocence, as guaranteed by Article 6 para. 2 of the Convention.         As regards the condition of the exhaustion of domestic remedies, the applicant submits that he did not have to await the outcome of domestic proceedings which do not have suspensive effect before lodging his complaint about the expulsion order with the Commission.   In this context he states that upon his return to Ukraine he would run a risk to life or health, as he was being sought by the Russian Public Prosecutor's Office as a witness in proceedings against high-ranking officers.     THE LAW   1.     The applicant complains about the expulsion order issued by the Berlin Municipality on 31 October 1992.   2.     The Commission recalls that the Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the provisions of the Convention, to control the entry, residence and expulsion of aliens.   The right to political asylum is not protected in either the Convention or its Protocols (cf. Eur. Court HR, Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 102).   3.     The Commission observes that, in his submissions as to the formal requirements under Article 26 (Art. 26) of the Convention, the applicant maintains that he would run a risk to his life and health, if returned to Ukraine.         The Commission has examined this allegation under Article 3 (Art. 3) of the Convention which provides that "[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment".         The Commission recalls that expulsion by a Contracting State of a foreigner may give rise to an issue under Article 3 (Art. 3) of the Convention and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned would face a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he is to be expelled (Vilvarajah and Others judgment, op. cit., para. 103).   Since the nature of the Contracting States' responsibility under Article 3 (Art. 3) in cases of this kind lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion; a mere possibility of ill-treatment is not in itself sufficient (Vilvarajah and Others judgment, op. cit., p. 36, para. 107 and p. 37, para. 111).         The Commission finds that the applicant's allegations do not relate to his own criminal prosecution, but to his possible questioning in proceedings against third persons.    Considering all circumstances, the Commission concludes that the applicant has failed to show that, upon his return to Ukraine, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (Art. 3) of the Convention.         It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 4.     The applicant affirms that the expulsion order violates the principle of the presumption of innocence, as guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention.         This provision reads as follows:         "Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to law."         The principle of the presumption of innocence is first of all a procedural guarantee applying in any kind of criminal procedure; however, in a wider sense, it protects everybody against being treated by public officials as being guilty of an offence before this is established according to law by a competent court (cf. Eur Court HR, Allenet de Ribemont v. France judgment of 10 February 1995, Series A no. 308, p. 16, para. 35; see also No. 9295/85, Dec. 6.10.82, D.R. 30, p. 227; No. 10857/84, Dec. 15.7.86, D.R. 48, p. 106).         In the present case, the criminal charge against the applicant dated back to 1992.   The criminal proceedings were discontinued by the Berlin Regional Court on 13 June 1992 pursuant to S. 153a of the Code of Criminal Procedure subject to the condition that he accepted paying substantial sums of money to the Treasury and to the victim of the offence.         In the context of the expulsion proceedings, the German authorities were called on to examine whether the applicant's conduct in Germany had amounted to a serious violation of the public safety and order, justifying his expulsion in accordance with the relevant provisions of the Aliens Act.   The Berlin Municipality, as confirmed by the administrative courts, considered the events which had given rise to the criminal proceedings against the applicant about two years earlier.   It referred in particular to the fact that the applicant had accepted the conditions attached to the discontinuation of the proceedings.         Having accepted to pay a considerable amount of compensation to the victim as well as to pay a further substantial sum of money to the Treasury in relation to the charges against him, the applicant cannot claim to be the victim of a violation of the presumption of innocence, as guaranteed by Article 6 para. 2 (Art. 6-2) of the Convention, in the ensuing expulsion proceedings.         It follows that this part of 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.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                         of the First Chamber