CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 1994

.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. 19544/92                       by Mustafa Fikret KÜÇÜK                       against Germany         The European Commission of Human Rights (Second Chamber) sitting in private on 12 October 1994, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, 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 12 December 1990 by Mustafa Fikret KÜÇÜK against Germany and registered on 26 February 1992 under file No. 19544/92;         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 is a Turkish citizen, born in 1940 and residing in Istanbul (Turkey).         In a first application to the Commission (No. 16770/90) the applicant complained of the judgment of the Kiel Regional Court (Landgericht) of 11 September 1987 by which he was convicted of rape and sexual harassment and sentenced to five years' and nine months' imprisonment. On 10 January 1991 the Commission declared this application inadmissible for non-exhaustion of domestic remedies.         The facts of the present application, as submitted by the applicant, may be summarised as follows.         On 18 September 1990 and 31 May 1991 the applicant requested to the re-opening of the criminal proceedings under which he had been convicted in 1987. This request was dismissed by the Lübeck Regional Court on 10 September 1991 on the ground that the evidence submitted by the applicant was not sufficient to set aside his conviction.         The applicant's appeal against this decision was unsuccessful. A constitutional complaint lodged by the applicant was declared inadmissible by the Federal Constitutional Court (Bundesverfassungs- gericht) on 13 March 1992.         In the meanwhile, on 8 March 1990, the Neumünster administrative authorities had refused to grant the applicant a residence permit and ordered the applicant to be expelled from Germany after having served his sentence. The applicant appealed (Widerspruch) against this decision. He stressed that he was innocent and that his deportation would separate him from his wife and four minor children who lawfully resided in Germany.         On 3 May 1991 the administrative authorities dismissed the applicant's appeal.         On 5 June 1991 the applicant appealed to the Schleswig-Holstein Administrative Court (Verwaltungsgericht). The appeal was dismissed on 4 December 1991 as being ill-founded.         The Administrative Court noted in particular that in 1975 the applicant had been convicted of rape by the Neumünster District Court (Amtsgericht) and sentenced to one year's imprisonment on probation and that in 1987 he had been convicted by the Kiel Regional Court of rape and sexual harassment and sentenced to five years' and nine months' imprisonment. According to the Administrative Court, having been sentenced to a minimum of five years' imprisonment, the applicant satisfied the conditions laid down in Section 47, Subsection 1, No. 1 of the Aliens Act and had to be expelled from Germany in accordance with Section 49 of the Aliens Act. Having regard to the serious nature of the offences, the applicant's deportation was necessary in the interest of public safety. His family links did not outweigh the public interest in imposing his deportation. Furthermore, his family could be expected to follow him to Turkey in order to maintain family contacts with him.         On 5 May 1992 the Federal Constitutional Court, sitting as a panel of three judges, dismissed the applicant's constitutional appeal against the above decisions as being inadmissible. The Court held that the applicant had failed to sufficiently substantiate his complaint.         The applicant's further appeals against the decision to deport him were unsuccessful.   COMPLAINTS         The applicant complains that his case has not been dealt with fairly by the criminal courts and that he was convicted and sentenced without having committed any criminal offence. He requests compensation in an amount of 500 000 DM.         The applicant also complains that his deportation to Turkey was in breach of his right to respect for family life.         The applicant does not invoke any particular provision of the Convention.   THE LAW   1.     The applicant who claims to be innocent complains of the judgment given by the Kiel Regional Court (Landgericht) on 11 September 1987 by which he was convicted of rape and sexual harassment and sentenced to five years' and nine months' imprisonment.         However, Article 27 para. 1 (b) (Art. 27-1-b) of the Convention provides that the Commission shall not deal with any application submitted under Article 25 (Art. 25) which is substantially the same as a matter which it has already examined and if it contains no new information. In the present case, the Commission recalls that on 10 January 1991 it declared inadmissible the applicant's Application No. 16770/90. After examining the present complaint, the Commission finds that it is essentially the same as the above application and that it contains no relevant new information.   It follows that this part of the application must be rejected pursuant to Article 27 para. 1 (b) (Art. 27-1-b) of the Convention.   2.     The applicant seems also to complain that he was refused a retrial.         However, the Commission recalls that this is not a right which as such is included among the rights and freedoms guaranteed by the Convention (cf. No. 14739/89, Dec. 9.5.89, D.R. 60 pp. 296, 301). Furthermore the proceedings concerning applications for retrial do not involve the determination of a civil right or a criminal charge within the meaning of Article 6 (Art. 6) of the Convention (cf. No. 7761/77, Dec. 8.5.78, D.R. 14 pp. 171, 173).         It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   3.     The applicant finally complains that his deportation to Turkey violated his right to respect for his family life. The Commission has examined   this complaint under Article 8 (Art. 8) of the Convention which states, insofar as relevant:         "1.   Everyone has the right to respect for his ... 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 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."         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) of the Convention (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, even assuming that the applicant has exhausted domestic remedies in accordance with Article 26 (Art. 26) of the Convention, finds that the applicant's complaints do not disclose any appearance of a violation of Article 8 (Art. 8) for the following reasons:         It is true that the applicant's wife and children have been permitted to establish domicile in Germany where they lawfully reside. Thus, the applicant's expulsion from Germany interfered with his right to respect for family life within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention. However, this interference is justified under Article 8 para. 2 (Art. 8-2) of the Convention.         The Commission observes that the German authorities, when deciding to deport the applicant from Germany, relied on Section 47, Subsection 1, No. 1 and Section 49 of the Aliens Act. The interference was therefore "in accordance with the law" within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.         Moreover, the Commission observes that the applicant was convicted of serious criminal offences, namely of rape and of sexual harassment. The Commission notes in particular that the German courts considered that the applicant's presence in Germany would constitute a danger for the public safety. After having considered all circumstances, they found his family links did not outweigh the public interest in imposing his deportation. Taking into account the margin of appreciation which is left to Contracting States in such circumstances (see Eur. Court H.R., Berrehab judgment of 21 June 1988, Series A no. 138, p. 15, para. 28), the Commission does not find that the German authorities achieved an improper balance between the interests involved.         The Commission therefore considers that the interference with the applicant's right to respect for family life was justified under this provision in that it could reasonably be considered "necessary in a democratic society ... for the prevention of disorder or crime".         The application is therefore manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously,         DECLARES THE APPLICATION INADMISSIBLE.              Secretary to                       President         the Second Chamber              of the Second Chamber               (K. ROGGE)                      (S. TRECHSEL)