CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 11 mai 2006

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Rozakis , President ,   Mr   L. Loucaides ,   Mrs   F. Tulkens ,   Mr   K. Hajiyev ,   Mr   D. Spielmann ,   Mrs   R. Jaeger ,   Mr   S.E. Jebens, judges , and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 21 August 2002, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the comments submitted by the Turkish Government, Having deliberated, decides as follows: THE FACTS The applicant, Mr Erkan Kaya, is a Turkish national who was born in 1978 and lives in Istanbul in Turkey. He was represented before the Court by Ms I. Baysu, a lawyer practising in Mannheim, Germany. The respondent Government were represented by Mrs A. Wittling-Vogel, Ministerialdirigentin , of the Federal Ministry of Justice. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     General background The applicant was born in Mannheim in Germany, where he lived with his parents and his younger sister and attended school. According to the applicant’s submissions, he visited Turkey only two or three times during his holidays. On an unspecified date the applicant’s older brother died in an accident. His parents have been lawfully resident in Germany for more than thirty years. On 19 May 1994 the competent authorities granted the applicant a permanent residence permit. On 31 January 1996 the Mannheim public prosecutor discontinued juvenile-delinquency proceedings brought against the applicant for grievous bodily harm. In 1998 the applicant completed his apprenticeship as a car mechanic. In July 1998 he worked for three or four weeks in Turkey. 2.     Proceedings for criminal offences On 27 January 1999 the applicant was arrested and subsequently detained on remand. On 8 September 1999 the Mannheim District Court ( Amtsgericht ) convicted the applicant of two counts of attempted aggravated trafficking in human beings ( versuchter schwerer Menschenhandel ), several counts of battery and aggravated battery ( schwere gefährliche Körperverletzung ), procurement ( Zuhälterei ), purchasing illegal drugs ( Erwerb von Betäubungsmitteln ), two counts of drunken driving and two counts of insulting behaviour and sentenced him to three years and four months’ imprisonment. The District Court found that between June 1998 and January 1999 the applicant had forced his former partner to surrender the main part of her earnings acquired through prostitution. To that end, he had used physical violence, on one occasion kicking the woman’s face with his shod foot. In January 1999 the applicant – together with two accomplices, including his former partner – had attempted on two occasions to force another woman into prostitution. The applicant and his male accomplice had intended to use the earnings to finance their upkeep and their drug consumption. To that end, the applicant and his accomplices had first locked the woman in. Later on, the applicant had encouraged his former partner to beat the woman and her sister, who had aided her resistance. In the applicant’s presence and with his explicit consent, both women had been punched at least ten times in their face. The applicant was also found guilty of having purchased five grams of cocaine on one occasion, together with one accomplice, and of having insulted several police officers. In view of the fact that the applicant had been twenty years old when committing his offences and that there was no indication of retarded development, the District Court did not apply juvenile but adult criminal law. When assessing the applicant’s sentence, the District Court treated as mitigating factors the fact that the applicant had no previous convictions and that he had confessed to the offences during the main proceedings. It emphasised, however, that the applicant had acted as the driving force in carrying out the crimes committed jointly against the second victim. The District Court further noted that the applicant had acted with “incredible brutality” ( unglaubliche Brutalität ) towards his second victim, after having already exploited his former partner. The applicant had taken around 48,000 German marks from the latter without leaving her the necessary resources to cater to her own and her child’s needs, his intention being to use the money for alcohol, drugs and other purposes of his own. The District Court put special emphasis on the exceptional brutality with which the applicant had exploited his former partner. Lastly, it considered the degree of disdain he had shown towards the police officers. Only the applicant’s confession had prevented the District Court from imposing a prison sentence of more than four years, which would have meant relinquishing the examination of the case in favour of the Regional Court. 3.     Expulsion proceedings On 23 November 1999 the Karlsruhe Regional Government ( Regierungspräsidium ) ordered the applicant’s expulsion to Turkey. It was announced that he would be deported on his release from prison. Although the applicant was born in Germany and possessed a valid residence permit, the Regional Government considered that his conviction for several serious offences made it necessary to expel him under section 47(1) and (3) and section 48(1) of the Aliens Act ( Ausländergesetz – see “Relevant domestic law” below) for serious reasons relating to public safety. Regard being had to the reasons given for the applicant’s criminal conviction, his expulsion was necessary in the interest of general deterrence ( Generalprävention ). The Regional Government also considered the applicant’s expulsion justified in this particular case because there was a high risk that he would continue to pose a serious threat to public safety. The seriousness of the offences committed by the applicant demonstrated his high criminal potential and his violent disposition. His criminal offences showed that he was not willing to respect the rights and dignity of his fellow human beings. These factors led to a serious danger of recidivism ( erhebliche Wiederholungsgefahr ). The Regional Government further found that the applicant’s expulsion was proportionate and complied with Article 8 § 2 of the Convention. The applicant was a single adult and could be reasonably expected to live in Turkey. He had not submitted any evidence that his parents depended on his support. His parents would be in a position to maintain contact with him by way of visits and exchanging letters. On 3 January 2000 the applicant applied to the Karlsruhe Administrative Court ( Verwaltungsgericht ) for judicial review of the expulsion order. He stated, inter alia , that his parents – especially his mother, but also, to a lesser degree, his father – were suffering from serious depression caused by the earlier loss of their eldest son. The applicant’s current situation had aggravated their condition, obliging them to seek medical treatment. His deportation might cause his mother to suffer a complete psychological breakdown. He was, moreover, ready to undergo social training and to come to terms with his former alcohol abuse. With respect to his prospects in Turkey, the applicant alleged that he spoke only colloquial Turkish and had but limited writing skills in that language. In a judgment of 24 February 2000 the Administrative Court rejected the applicant’s application. It concurred with the reasoning set out in the expulsion order to the effect that there were sufficient indications that the applicant would continue to pose a danger to public order and safety. The alleged hardships suffered by the applicant’s parents did not justify a different assessment of the facts. The applicant subsequently applied for leave to appeal. In a letter of 10   January 2001 he submitted, inter alia , that he had been born in Germany, where he had gone to school and received vocational training. His whole family lived in Germany. He further submitted that he did not have any connection with Turkey and that he had poor knowledge of the Turkish language. His expulsion would lead to the destruction of his family. On 7 March 2001 the Baden-Württemberg Administrative Court of Appeal ( Verwaltungsgerichtshof ) refused the applicant leave to appeal. It found, firstly, that the applicant’s submissions were not capable of raising serious doubts as to the correctness of the Administrative Court’s judgment. Furthermore, he had not established that an appeal would be justified on the ground of the legal complexity of the subject matter. It was obvious that the interference with the applicant’s right to respect for his private and family life, as guaranteed by Article 8 of the Convention, was justified under paragraph 2 of that Article, regard being had in particular to the serious danger of recidivism. On 5 April 2001 the applicant was deported from prison to Turkey. The remaining third of his prison sentence was suspended in view of his deportation. On 7 April 2001 the applicant lodged a constitutional complaint, in which he gave a complete account of the proceedings before the domestic authorities and complained, among other things, of a violation of his right to the enjoyment of his family life as guaranteed by Article 6 of the Basic Law. On 12 February 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant’s complaint for adjudication without giving any reasons. That decision was served on the applicant on 21   February 2002. 4.     Further developments On 20 May 2002 the applicant married a German national of Turkish origin, who lives in Germany. On 28 December 2003 a child was born to the couple. On 16 September 2002 the applicant requested to have a time-limit placed on his exclusion order. On 19 July 2004 the Karlsruhe Regional Government limited the period of validity of the applicant’s exclusion order until 5   October 2006. The limitation was subject to the condition that the applicant was to submit evidence that he had not committed any further criminal offences and that he was still married to his German wife, that he was to submit a hair analysis proving that he did not consume drugs and that he was to reimburse the expenses incurred in connection with his deportation. An application by the applicant for judicial review of that decision is currently pending before the Karlsruhe Administrative Court. B.     Relevant domestic law The rights of entry and residence for foreigners were governed until 31   December 2004 by the Aliens Act ( Ausländergesetz ) and from 1   January   2005 by the Residency Act ( Aufenthaltsgesetz ). By section 47(1), point 1, of the Aliens Act, a foreigner is to be expelled where he or she has been sentenced to a minimum of three years’ imprisonment for having wilfully committed one or more criminal offences. If a foreigner was born in Germany and is in possession of a permanent residence permit, he or she may only be expelled if serious reasons relating to public safety and order justify the expulsion (section 48(1)). Generally, this will be the case where section 47(1) applies ( Regelausweisung ). Pursuant to section 8(2), an alien who has been expelled is not permitted to re-enter German territory. This effect can usually ( in der Regel ) be limited in time upon application. A similar provision is contained in section   11 of the Residency Act. Section 85 of the Aliens Act, as in force from 1 July 1993 until 31   December 1999, provided as follows: “(1) An alien who applies for naturalisation between the age of 16 and 23 shall be naturalised provided that he or she 1. loses or relinquishes his or her former nationality, 2. has been legally residing in Germany for eight years, 3. has attended a school for six years, including at least four years of attendance at a school providing general education, and 4. has not been convicted of a criminal offence. (2) There shall be no entitlement to naturalisation if the alien does not possess a residence permit. Naturalisation may be denied if there is a ground for expulsion.” Section 27 of the Residency Act provides that a residence permit is to be granted for reasons of family reunion. By section 28, a residence permit is to be granted to a German national’s spouse or minor child, or to the parent of a minor German national in order to exercise parental authority. The relevant provisions of the Rules of Procedure of the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz) read as follows: Rule 23 “(1) Applications for the institution of proceedings must be submitted in writing to the Federal Constitutional Court. Reasons must be stated; the requisite evidence must be specified. ...” Rule 90 “(1)... (2) If legal action against the violation is admissible, the constitutional complaint may not be lodged until all remedies have been exhausted. However, the Federal Constitutional Court may decide immediately on a constitutional complaint lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant.” Rule 92 “The reasons for the complaint shall specify the right that has allegedly been violated and the act or omission of the organ or authority by which the complainant claims to have been harmed.” COMPLAINTS 1. The applicant complained under Article 8 of the Convention about his expulsion and his separation from his family. 2. The applicant further complained under Article 3 of the Convention that he risked being forced to perform his military service in an alleged conflict zone on his return to Turkey. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION The applicant complained that his expulsion had violated his right to respect for his private and family life under Article 8 of the Convention, which reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1.     Exhaustion of domestic remedies (a)     The parties’ submissions The Government contended that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. They alleged, in particular, that he had failed to provide sufficient grounds for his application for leave to appeal against the judgment of the Administrative Court. The applicant’s submissions of 10 April 2000 had not been capable of raising any doubts about the correctness of the Administrative Court’s judgment. The applicant had merely stated that he had time and again succeeded in overcoming difficult life situations, that he had no major debts, had ceased to consume drugs and that his conviction concerned a first-time offence which had taken place among friends. His further submissions to the Administrative Court of Appeal had been lodged after the statutory time-limit and had therefore been irrelevant. For the same reasons, the applicant’s constitutional complaint had been inadmissible, as he had failed to exhaust prior domestic remedies, as required by Rule 90 § 2 of the Rules of Procedure of the Federal Constitutional Court. Furthermore, the applicant had failed sufficiently to substantiate his constitutional complaint as required by Rule 92, in conjunction with Rule 23, sentence 2, of the Rules of Procedure. In particular, he had failed establish conclusively evidence of the extent to which the impugned decisions had violated his right to the enjoyment of his family life as guaranteed by Article 6 of the Basic Law. The applicant contested those arguments. He pointed out that neither his application for leave to appeal nor his constitutional complaint had been declared inadmissible on any formal grounds. (b)     The Court’s assessment The Court reiterates that, whereas Article   35 §   1 of the Convention must be applied with some degree of flexibility and without excessive formalism, it normally requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic courts, at least in substance and in compliance with the formal requirements and time-limits laid down in the domestic law (see, among other authorities, Cardot v. France , judgment of 19   March 1991, Series   A no.   200, p.   18, §   34). However, non-exhaustion of domestic remedies cannot be held against the applicant if, in spite of the latter’s failure to observe the forms prescribed by law, the competent authority has nevertheless examined the substance of the complaint (see, among other authorities, Skałka v. Poland (dec.), no. 43425/98, 3 October 2002; and Uhl v. Germany (dec.), no.   64387/01, 6 May 2004). Turning to the present case, the Court notes, firstly, that the Baden-Württemberg Administrative Court of Appeal in its decision of 7   March   2001 expressly stated that the interference with the applicant’s right to respect for his private and family life had been justified under Article 8 § 2 of the Convention. It follows that the Court of Appeal did examine the substance of the applicant’s complaint under Article 8. The Court further notes that the applicant, in his constitutional complaint, gave a complete account of the proceedings before the domestic authorities and complained that the impugned decisions had violated his right to the enjoyment of his family life as guaranteed by Article 6 of the Basic Law. It follows that the applicant did raise his complaint in substance before the Federal Constitutional Court. The Court further notes that the Federal Constitutional Court in its decision of 12 February 2002 did not give any reasons for refusing to accept the applicant’s complaint for adjudication. There is no indication that the Constitutional Court considered that the applicant had not complied with the formal requirements laid down in its Rules of Procedure. In those circumstances, the Court is not in a position to take the place of the Federal Constitutional Court and to speculate why that court decided not to admit his complaint (see, mutatis mutandis , Keles v.   Germany , no. 32231/02, §   44, 27 October 2005). The applicant must therefore be regarded as having exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. 2.     Compliance with the six-month time-limit The Government expressed their doubts as to whether the application had been lodged in compliance with the six-month time-limit laid down in Article 35 § 1 of the Convention. The applicant pointed out that he had lodged his complaint by fax on 21   August 2002. The Court notes that the final domestic decision of the Federal Constitutional Court was served on the applicant’s counsel on 21   February   2002. Accordingly, the six-month period expired on 21   August   2002. The applicant lodged his complaint by fax on that same day. It follows that the complaint was lodged by written communication to the Court within the six months allowed. 3.     Merits (a)     The Government’s submissions In the Government’s submission, the applicant’s expulsion had interfered only with his right to the enjoyment of his private life, since by the time the expulsion order had become final he was an adult and had not yet founded a family of his own. The applicant had not established that he relied on his family’s support or that his family relied on his support to an extent which necessitated his presence in Germany. The fact that the applicant’s parents had suffered as a result of their separation from him and that this might lead to depression did not mean that they depended on his presence in Germany. Furthermore, the Government argued, the applicant’s sister should also be in a position to offer them a certain amount of support. The applicant’s expulsion had been in accordance with the law and necessary for serious reasons relating to public order and security, namely the risk of his reoffending. With regard to the question whether the domestic authorities had struck a fair balance between the competing interests at stake, the Government accepted that the applicant belonged to the group of so-called “second-generation” immigrants and was entitled to a higher degree of protection against expulsion. However, they submitted that the gravity of the offences committed by the applicant, which could not be regarded as mere examples of juvenile delinquency, justified his expulsion. In that connection, the Government emphasised the extreme brutality and the duration of his criminal activities, as well as the fact that the criminal court had identified him as the driving force behind the crimes committed jointly. Furthermore, the applicant had previously committed other violent acts. The fact that he consumed drugs further justified the assumption that he would commit further crimes in order to procure drugs for himself. The Government further submitted that the applicant had failed to integrate into the social and economic environment in Germany. Having finished his training as a car mechanic, he had not shown any inclination to find appropriate employment. His family had not prevented him from committing criminal offences. In so far as his social prospects had improved through the founding of his own family, that could not be taken into account in the proceedings relating to his expulsion. The Government did not attach credence to the applicant’s allegation that he had not maintained any contact with Turkey and that he did not have sufficient knowledge of the Turkish language. They pointed out that during his detention on remand he had written letters to his mother in Turkish. The Government further emphasised that the applicant had not applied for naturalisation prior to his criminal conviction, even though he would have satisfied the necessary prerequisites laid down in section 85(1) of the Aliens Act, as in force until 31 December 1999 (see Relevant domestic law above). The Government lastly pointed out that the domestic authorities had had to decide on the setting of a time-limit in separate proceedings which did not form the subject matter of the present application. In its decision of 19   July 2004 the Karlsruhe Regional Government had carried out a fresh assessment of the competing interests at stake, including the applicant’s new family bonds. If he fulfilled the conditions set out in that decision, he would be permitted to re-enter German territory by 6 October 2006. Having regard to his German wife and child, he would be granted a residence permit. (b)     The applicant’s submissions The applicant submitted that his expulsion had interfered with his rights under Article 8 under the limbs of both private and family life. This interference was disproportionate in view of the fact that he had lived his whole life in Germany, that he had not maintained any contact with Turkey and that his family relied on his support. Being the oldest son, he played a special role in the family. He had only poor knowledge of the Turkish language, as his parents originated from Bosnia and the family spoke Bosnian at home. This was not disproved by the fact that he had sent letters in Turkish to his mother from prison, as he had dictated the letters in German to his Turkish cellmate. He further pointed out that both his parents had been suffering from depression since his older brother had died in an accident several years earlier. The applicant’s presence was essential for their well-being. In that connection, he submitted a medical certificate of 5 May 2000 attesting that both his parents were being treated for depression as a result of his current personal circumstances. With regard to his criminal conviction, the applicant emphasised that he had been only twenty years of age at the time of the offences and that he had been addicted to drugs. He further pointed out that he had not committed the offences on his own, but jointly with a more experienced co-offender. The offences had all been committed during a short period of not more than six months. Apart from that conviction, he had no criminal record, as the juvenile proceedings which had been discontinued when he was seventeen years old could not be taken into account in the present proceedings. He had come to terms during his detention with the reasons why he had committed the offences, and did not pose a risk to public safety. He further alleged that the domestic courts had failed to carry out a thorough assessment of the risk of his reoffending. He had not committed any further offences during the five years following his expulsion. Even if allowed re-entry to Germany on the expiry of the period of validity of his exclusion order, he would not regain his former residential status. He would only obtain a limited residence permit, which he would lose if he separated from his wife within two years following re-entry. Furthermore, he would be compelled to serve the remainder of his prison sentence, which had been suspended in view of his deportation. Lastly, the applicant alleged that an application for naturalisation prior to his criminal conviction would not have had any prospect of success, as at the time he had not earned enough money for his own upkeep. (c)     The Court’s assessment   The Court has examined the applicant’s complaints and the submissions of the parties and finds that serious questions of fact and law arise, which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot therefore be regarded as manifestly ill-founded within the meaning of Article   35 §   3 of the Convention. No other grounds for declaring it inadmissible have been established. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION The applicant complained that, following his deportation to Turkey, he might be forced to perform his military service in a conflict zone. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Turkish Government, who had been granted leave by the President to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 §   2), submitted that the applicant’s military service was currently postponed and that he would be eligible for short-term military service if he fulfilled certain conditions. Otherwise, he would have to perform his military service in accordance with the general conditions. The Government emphasised that recruits’ education, profession and other qualifications were taken into consideration and that the place of military service was determined at random. The Court notes at the outset that the applicant has not established that he has raised this complaint before the domestic courts. Even assuming exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention, the Court finds that the applicant has not established that he would be at risk of any treatment contrary to Article 3 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4. For these reasons, the Court by a majority Declares admissible, without prejudging the merits, the applicant’s complaint under Article 8 of the Convention; Declares inadmissible the remainder of the application.   Søren Nielsen   Christos rozakis   Registrar   President