CAGLAR v. GERMANY
Inadmissible
Antonio Pastor Ridruejo
The applicant, a Turkish national born in 1946, lives in Ober-Ramstadt (Germany). He is represented before the Court by Mrs Antje Martens, a lawyer practising in Ober-Ramstadt. On 9 September 1971 the applicant entered Germany by virtue of the Agreement concluded on 30 October 1961 between the Government of the Federal Republic of Germany and the Government of the Republic of Turkey on the recruitment of Turkish workers. The applicant was granted the appropriate work and residence permits. On 17 September 1987 he was granted a residence permit of unlimited duration. The applicant was first employed by a company in Rohrbach. Thereafter he worked in various restaurants. The applicant’s wife entered Germany in 1972 with the couple’s three children born in Turkey in 1964, 1968 and 1970. She holds a permanent residence permit. On 12 July 1988 the applicant was arrested and detained pending trial on suspicion of being implicated in a case of drug trafficking. By a judgment of 6 November 1991, which subsequently became final, the Darmstadt Regional Court (Landgericht) convicted the applicant of illegal drug trafficking and sentenced him to seven years’ imprisonment. The applicant’s accomplice was convicted of illegal drug trafficking and attempted importation of narcotics and sentenced to seven years’ and three months’ imprisonment. The court found that the applicant who was not a drug addict, had bought together with his accomplice, a co-national, approximately 1,000 grams of heroin for the price of 70,000 German marks. In March/April 1987 a third person supplied them with two samples of respectively half a gram of heroin. Not being satisfied with the quality, they refused to buy a larger amount. One month later further negotiations took place with the same person and with the same result. As from August 1987 the applicant’s accomplice sold several times altogether about 100 grams of heroin in quantities of 5 to 14.5 grams. According to the court, the applicant and his accomplice acted in a professional way to the detriment of the health and life of numerous drug addicts. Since 10 September 1992 the applicant served his sentence in the Darmstadt prison. He was granted day parole release and worked for a private enterprise in Weiterstadt. On 24 February 1993 the Darmstadt Regional Court ordered the applicant’s release on probation. The applicant was released on 4 March 1993. He was employed by the private enterprise until 31 August 1993. After having heard the applicant on several occasions, the Darmstadt-Dieburg Administrative Authorities ordered the applicant’s expulsion on 1 December 1993 and invited him to leave Germany within three months. The decision to expel the applicant was based on Sections 47 and 48 of the Aliens Act (Ausländergesetz) according to which an alien is to be expelled when he has been sentenced to a minimum of five years’ imprisonment and serious reasons of public safety and order justify his expulsion. The Administrative Authorities pointed out that the applicant had been convicted of drug offences, sentenced to seven years’ imprisonment and it considered that his expulsion had to be ordered on general preventive grounds having the objective of deterring other aliens. Furthermore, the applicant’s personal conduct when committing the offences indicated a specific risk of re-offending. The Administrative Authorities noted that the applicant’s wife lived for many years in Germany and was granted a residence permit. However, a medical examination did not show that she suffered from psychiatric health problems, as was alleged by the applicant. The couple’s three children were of full age and sufficiently independent to organise their life without their father. The Administrative Authorities concluded that the applicant’s expulsion was justified by the public interest, which had greater importance than the applicant’s personal interest to stay in Germany. Following the partial dismissal of his objection (Widerspruch), the applicant brought the case before the Darmstadt Administrative Court (Verwaltungsgericht). On 3 March 1998 the Administrative Court dismissed the applicant’s claim to have the expulsion order revoked. The court considered that the applicant’s conviction of drug trafficking and his term of emprisonment of seven years reflected a serious breach of public order. The applicant had direct and narrow connections with drug dealers and the drug scene. He had acted in a professional manner as was shown by the quantity of the heroin and the fact that in March/April 1987 he and his accomplice twice refused to accept offers to buy heroin because of its unsatisfactory quality. This also proved that the applicant had a profound knowledge of drugs and did not accept bad quality. Furthermore, the heroin was sold in quantities of five to ten grams during a longer period and the deals were concluded generally in the restaurants in which the applicant was employed. Finally it had to be taken into account that the applicant did not make his confession until very late in the proceedings, namely when he realised that he had no other choice. For that reason, his sentence was relatively more severe than that of his accomplice. The court added that there was no doubt that offences such as illegal heroin trafficking, because of the danger they present for the health of the users and the widespread drug-related criminality, constituted a particularly serious threat to public safety and justified the expulsion of aliens who contravened the laws on drugs for the purpose of deterring other aliens. The court found that the applicant’s conduct which gave rise to his conviction was evidence of a genuine and sufficiently serious risk that he might commit further drug offences. Furthermore, there was no indication of exceptional circumstances that would justify non-expulsion. The court noted that the applicant had been integrated into Germany after having lived there for more than 26 years with his wife and other close members of his family, and that he had been legally employed there for years. The court considered, however, that a foreign national could be denied the right to the protection of his marriage on the basis of general preventive grounds if he had committed drug offences. The applicant’s case was therefore not different from that of other aliens who after a long stay had to leave the country for having committed serious offences. Moreover, the Administrative Court found that the interference with the applicant’s right to respect for his private and family life, as guaranteed by Article 8 § 1 of the Convention, did not infringe the principle of proportionality. The measure complained of was not disproportionate to the seriousness of the offences committed by the applicant and was thus justified under paragraph 2 of this provision. On 25 June 1998 the applicant filed a request for leave to appeal (Antrag auf Zulassung der Berufung). On 28 April 1999 the Hessen Administrative Court of Appeal (Hessischer Verwaltungsgerichtshof) dismissed this request and on 4 November 1999 rejected the applicant’s request to reconsider this decision. On 22 November 1999 a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the applicant’s constitutional complaint for adjudication and on 4 February 2000 declined to accept for adjudication the applicant’s constitutional complaint against the communication of the Hessen Administrative Court of Appeal of 4 November 1999. In the meantime, on 10 June 1999, the Darmstadt-Dieburg Administrative Authorities had informed the applicant that he would be expelled to Turkey if he did not to leave Germany before 15 July 1999. On 2 July 1999 the applicant filed an objection against this decision. He submitted that he had not committed any offence after his conviction in 1991. His personal conduct did thus not indicate any specific risk to the requirements of public order and safety. Furthermore, his wife suffered from serious psychiatric health problems and needed his help. According to him, his expulsion could not be justified only on the basis of general grounds of prevention. On 7 January 2000 the applicant applied for an interim injunction (einstweilige Anordnung) requesting to stay his expulsion pending the administrative proceedings. On 12 May 2000 the Darmstadt Administrative Court dismissed the request. It confirmed the decision to expel the applicant to Turkey reaffirming that the applicant’s personal interest to stay in Germany did not outweigh the public interest to expel him. On 4 October 2000 the Hessen Administrative Court of Appeal dismissed the applicant’s request for leave to appeal (Antrag auf Zulassung der Beschwerde). On 3 November 2000 the applicant filed a constitutional complaint against this decision and applied for an interim injunction. These proceedings are still pending.