CASE OF CHAIR AND J. B. v. GERMANY
Not necessary to rule on the preliminary objection (non-exhaustion);No violation of Art. 8
Christos Rozakis
6. The first applicant was born in 1962 and lived in Morocco until 1987. 7. In 1987 he left Morocco in order to complete his chemistry studies in France. In June 1989 he went to Germany in order to obtain a doctorate in chemistry. From July 1993 to December 1994 he worked as a university assistant at Marburg University. In 1995 he moved to Hanover, where two of his brothers were living and where he worked in one of his brother's enterprises. Subsequently, he worked in his own kiosk. In 1998 he started training with a view to becoming an expert in logistics. 8. In 1990 the competent authorities granted the first applicant a temporary residence permit, which was prolonged first until March 1994 and then until the end of April 1997. 9. On 13 March 1997 the first applicant married the second applicant. His residence permit was thus prolonged until 14 May 2000. 10. In May 1997 a daughter was born to the applicants. 11. On 13 January 1998 the Hanover District Court (Amtsgericht) convicted the first applicant of aggravated theft and sentenced him to fifteen daily fines of thirty German marks. 12. On 14 January 1999 the applicant was arrested and subsequently detained on remand. 13. On 21 April 1999 the Hanover Regional Court (Landgericht) convicted the first applicant of rape. According to the facts established by the Regional Court, on 11 December 1998 he had forced a university student at knifepoint to engage in sexual contact with him. It sentenced him to five years and three months' imprisonment. In its reasoning, the Regional Court considered in particular the fact that the first applicant had for the most part confessed his crime, that he had used the knife only once at the beginning of the act and that he had lived an orderly life in spite of his difficulties in finding employment. The Regional Court took further into account that the crime had to a large part been committed owing to the first applicant's considerable intoxication and his growing frustration emanating from the lack of sexual contact with his wife. However, having regard to the fact that the first applicant had performed two acts of sexual coercion, that the incident had lasted for an overall duration of forty minutes and that he had constantly used force against his victim by exerting pressure with his arm and his hand, respectively, these factors precluded further mitigation of sentence. 14. Following his conviction, the first applicant served his sentence in Hanover Prison. 15. On 14 July 2000 the psychological expert P. submitted an expert opinion to the prison authorities. He considered that the first applicant had acknowledged his crime and was willing to change, in particular with regard to his alcohol consumption and his sexual conduct. There was no indication of sexual deviance. The expert further noted that the first applicant's upbringing in a traditional Moroccan family had led to a very restricted concept of masculinity, which he had not been able to revise. His relationship with the second applicant had been very burdened by the fact that the second applicant had refused sexual contact with him following the birth of their daughter and that he had not been able to talk to her about this. The expert further noted that there had been other situations prior to the rape where the applicant had harassed women, although such situations had not led to the commission of a sexual offence. He concluded that the first applicant was open-minded and self-critical. He was able to comprehend the circumstances which had led to the commission of the crime and to search for ways of overcoming his problems. Provided the first applicant engaged in pertinent couple therapy and managed to give up his illusionary concept of masculinity, a positive legal prognosis could be attributed to him. 16. According to the records of the regular conferences on the planning of sentence execution (Vollzugsplankonferenz), the first applicant attempted to instigate couple therapy. In February 2001, however, it was noted that the applicant's wife had expressed that she was experiencing great difficulties with her own situation, which she preferred to solve on her own before dealing with her husband's problems. She was uncertain whether she wished to continue the relationship. 17. From June 1999 until February 2000 the applicant attended meetings of Alcoholics Anonymous. 18. In the record dated 2 November 2001 the prison authorities noted that, in August 2001, the second applicant had had a conversation with a prison social worker, who gained the impression that she was not interested in meeting her husband and that she could not cope with the situation. The second applicant had not made use of her visiting rights for one year. In September 2001 the second applicant informed the social service by telephone that she agreed to meet her husband in spite of her doubts. 19. The participants in the conference of 2 November 2001 noted that the first applicant had been undergoing psychotherapy. They had, however, not gained the impression that he had made sufficient progress, as he was continuing to exert pressure on his wife and was trying to control her. It was further noted that the applicant's conduct during his detention was impeccable. 20. In the record dated 28 November 2002 it was noted that the first applicant had been granted leave to visit his wife and daughter on seven occasions since May 2002. The staff accompanying the visits considered that the state of the applicants' marriage was still unclear. While there had been a certain rapprochement between the couple, the spouses still did not communicate much with each other, but rather via the child. The second applicant was not opposed to her husband's continuing to visit their daughter. It still appeared, however, that she wanted a separation. The participants in the conference further consulted three psychological experts, including P., who considered that the applicant had not resolved his problems as regards his partnership and social contact with females. All three considered, however, that the danger of recidivism was low. 21. On 28 July 2000 the Municipal Public Order Authority (Ordnungsamt) of Hanover ordered the first applicant's expulsion to Morocco. Deportation to Morocco was announced upon his release from prison. Although the applicant was in possession of a valid residence permit and married to a German national, they considered that his conviction for a serious crime made it necessary to expel him under sections 47 § 1 and 48 § 1 of the Aliens Act (Ausländergesetz, see Relevant domestic law below). The circumstances of the present case left no room for any discretion on the part of the German authorities. The circumstances leading to his last conviction proved that he possessed a considerable amount of criminal energy. As a recidivist (Wiederholungstäter), there was a risk that the first applicant would commit further criminal acts in the future. The first applicant's assumption that his victim had willingly engaged in sexual contact with him gave rise to doubts as to whether he had fully comprehended and absorbed the extent of his crime. 22. According to the authorities, the long period spent in Germany could not preclude his expulsion, as his criminal offences had shown that he had so far not adapted to the living conditions in Germany. Neither his marriage to a German national, nor the fact that they had a child, could lead to a different conclusion in view of the seriousness of his crime. 23. On 29 January 2001 the Hanover District Council (Bezirksregierung) rejected an objection lodged by the applicant. 24. On 13 February 2002 the Hanover Administrative Court (Verwaltungsgericht) confirmed the deportation order of 28 July 2000. Having regard to the reasons given for the first applicant's criminal conviction, it found that given the seriousness of his crime, his expulsion was necessary in the interest of general deterrence (Generalprävention). It also considered the expulsion justified in this particular case. The Administrative Court did not view the first applicant as a recidivist, as his prior conviction for theft could not lead to the conclusion that he would continue to commit sexual offences. However, although the psychological expert P. had given the first applicant a positive social prognosis, a positive legal prognosis could only be given on condition that the first applicant engaged in successful therapy for couples and took leave of his “illusory concept of masculinity”. At the relevant time in January 2001 when the District Council gave its decision on the applicant's objection, these requirements had not been met. 25. Despite the first applicant's high professional qualifications and the fact that he had otherwise lived an orderly life, the two criminal offences committed in Germany attested to the fact that he had not succeeded in fully integrating himself into German society. This finding was also based on P.'s statement that there had been other situations prior to the rape where the first applicant had harassed women, even if such situations had not led to the commission of a sexual offence. If the first applicant did not learn how to deal adequately with problems and conflicts through pertinent therapy, the Administrative Court could not rule out the possibility that he might again commit criminal acts. 26. The Administrative Court further pointed out that, according to the legal practice in Germany, the existence of family ties alone could not preclude the first applicant's expulsion. In any event, at the time of the expulsion decision, there were severe doubts as to the stability of the applicants' marriage. It was not certain to what extent the second applicant knew about the details of the crime committed by her husband. The relationship between the spouses was considered to be problematic. The second applicant had also not reacted to an invitation to state her views on her husband's expulsion. The first applicant had not substantiated why it was necessary for his wife and child that he remain in Germany, in particular as his wife financially supported the family and had, already prior to the first applicant's imprisonment, arranged for their daughter to be cared for by a third person while she was at work. 27. The daughter's interest in her father's remaining in Germany could also not be considered as more important than the public interest in his expulsion. The right to have contact with his daughter was only protected in so far as that right had been exercised in the past. Despite regular meetings between the applicant and his daughter, which were apparently being continued, there was no indication that the daughter depended on these contacts. Having regard to the long periods of time which had elapsed between the visits and the fact that the daughter had not lived with the applicant since his arrest more than three years earlier, it appeared that they had a relationship based merely on occasional encounters (Begegnungsgemeinschaft). Under these circumstances, the applicant had failed to substantiate that his ties with his daughter amounted to a strong parent-child relationship that would warrant his remaining in Germany. 28. On 28 May 2002 the Lower Saxony Administrative Court of Appeal (Oberverwaltungsgericht) upheld that decision and rejected the first applicant's request for leave to appeal. 29. On 12 December 2002 the Federal Constitutional Court refused to accept the applicant's complaint for adjudication. 30. On 13 January 2003 the first applicant lodged a request for an interim order with the aim of obtaining a temporary suspension of deportation (Duldung). On 6 February 2003 the Hanover Administrative Court dismissed this request, stating firstly that his expulsion was not imminent as the first applicant was still serving his prison sentence. In any event, the applicant's request was unfounded. Referring to its own judgment of 13 February 2002, which had been upheld by the Administrative Court of Appeal, the Administrative Court held that the deportation order was in accordance with the law and that there was no cause for a suspension of the deportation. On 26 February 2003 the first applicant lodged an appeal. Following consultation of the case file, the applicant's counsel withdrew this appeal on 10 March 2003. 31. On 27 February 2003 the Hanover Regional Court, sitting as a post-sentencing chamber (Strafvollstreckungskammer), ordered the first applicant's release on probation. Based on psychological expert reports and on the submissions of the prison authorities, the Regional Court concluded that if the first applicant continued to abstain from abuse of alcohol, the risk that he might commit further crimes was comparatively low. It assumed that the four years spent in prison may have contributed to a complete cure from his former addiction and considered that he had comprehended the extent of his crime. While admitting that his relationship with the second applicant had probably deteriorated during the time spent in prison, the Regional Court considered it noteworthy that the couple had so far not divorced, nor had either of the spouses petitioned for a divorce. 32. Following the first applicant's release from prison on 2 April 2003 the applicants lived together with their child. According to the applicants' submissions, they started to follow couple therapy in March 2004. On 15 March 2004 the Kingdom of Morocco, on the Municipal Public Order Authority's request, issued a passport substitute document in order to allow the first applicant's deportation. After that the first applicant left his family and went into hiding. 33. On 18 March 2004 the applicant filed a request with the Municipal Authority to set a time-limit on the exclusion from German territory, which was a legal consequence of his expulsion. 34. On 24 July 2004 the applicant was arrested and on 16 September 2004 he was deported to Morocco. 35. On 9 August 2005 the Municipal Public Order Authority of Hanover limited the applicant's exclusion from the German territory to twelve years from the time of deportation, that is until 16 September 2016. The applicant's request for an earlier time-limit was rejected. The applicant was further granted the option to apply for a fresh examination of his request in 2013. 36. In February 2006 the first applicant re-entered German territory. On 16 March 2006 he was arrested on suspicion of theft accompanied by violence committed under the influence of alcohol. According to police investigations, he had reached into a cash register in a bar in order to procure the means to acquire more alcohol. The applicant remained in detention pending deportation to Morocco. 37. By a letter of 13 February 2007 the applicants' counsel informed the Court that the second applicant wished to withdraw her complaint. 38. The rights of entry and residence for foreigners were, at the relevant time, governed by the Aliens Act (Ausländergesetz). Under section 47 § 1, no. 1, of the Aliens Act, a foreigner was to be deported when he had been sentenced to a minimum of three years' imprisonment for having wilfully committed one or more criminal offences. If he was married to a German citizen, a foreigner could only be deported if serious reasons of public safety and order justified his expulsion (section 48 § 1). This was generally the case where section 47 § 1 was applicable. 39. Under section 8 § 2, a foreigner who had been deported was not permitted to re-enter German territory. A time-limit on the exclusion period was usually (in der Regel) granted upon an application by the deportee. 40. Section 53 § 4 stipulated that a foreigner could not be deported if such deportation would not be authorised under the European Convention on Human Rights. 41. Under section 55 § 2, a foreigner could be granted a temporary suspension of deportation (Duldung) for as long as there were legal or factual reasons making his deportation impossible. 42. The suspension of deportation did not affect the foreigner's duty to leave the country. The time-limit for such a suspension could not exceed one year, but it was renewable (section 56 §§ 1-2). 43. Since 1 January 2005 the entry and residence rights of foreigners have been governed by the Residence Act (Aufenthaltsgesetz).