Order of the 1st Chamber of the Second Senate of 1 March 2004
– 2 BvR 1570/03 –

in the proceedings on the constitutional complaint of the Turkish national A.
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RULING:

The constitutional complaint is not admitted for decision.
The application to issue an injunction is therewith concluded.

GROUNDS:

I.

1. a) The applicant objects to his expulsion to Turkey.

He was born in Germany in 1983 and grew up here, where his parents and siblings also live. He has had a permanent residence permit since December 1999.

The applicant has come to the notice of the police several times since 2000. He was sentenced most recently on 22 July 2002 in respect of joint robbery by blackmail in concurrence of offences with threat, robbery by blackmail in concurrence of offences with bodily harm, threat in concurrence of offences with deprivation of liberty and coercion, coercion in concurrence of offences with threat, threat in two cases in concurrence of offences with theft resembling robbery, coercion and theft, as well as in respect of blackmail relating to the two latter convictions, to combined youth custody of three years and six months.

In consequence of the latter conviction, the immigration authority expelled him by order of 9 May 2003, ordered the immediate enforcement of this expulsion and announced to him that he would be expelled from custody to Turkey. In accordance with § 47.3 sentence 3 of the Aliens Act (Ausländergesetz – AuslG) a decision could allegedly be taken here on expulsion solely on discretion. The expulsion had been necessary for special preventive reasons, also considering the family and other personal circumstances of the applicant.

b) The administrative court rejected his application for interim legal protection. The Higher Administrative Court rejected the complaint submitted against this.

2. The applicant is complaining of a violation of Art. 1, Art. 3 and Art. 6 of the Basic Law (Grundgesetz – GG) in conjunction with Art. 3 and Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. He asserts that a person born and brought up in Germany having permanent legal residence must be treated as a de facto national in relation to whom criminal offences of a medium and grievous nature, in particular youth offences, must on principle be accepted and only sanctioned with the means available to criminal law, but not with expulsion and deportation. He – the applicant – also had no tenable connection with Turkey, where he had never lived, but had only been as a tourist every other year for about four weeks. Even if he had learned Turkish in his parents’ home, he spoke the language badly. He refers here to the case-law of the European Court of Human Rights. Further, he refers to Article 14 of Decision 1/80 of the EC-Turkey Association Council, as well as to the fact that the European Commission has allegedly forwarded to Germany a "reasoned opinion" because of repeated violations of directive 64/221/EEC, and to the criticism contained therein of expulsion orders by German administrative authorities.

II.

The constitutional complaint is not to be admitted for decision because the admission preconditions of § 93a.2 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG) are not met. The constitutional complaint has no fundamental constitutional significance because the questions it poses have been clarified in the constitutional court case-law or can be easily resolved using the previous case-law (see BVerfGE 74, 358 <370> on accommodation of the case-law of the European Court of Human Rights; see Decisions of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts – BVerfGE)76, 1 <49 et seqq.>; 80, 81 <93 et seqq.> on the protective effects under the law on residence provided by Art. 6.1 of the Basic Law). The acceptance of the constitutional complaint is also not required to implement the fundamental rights alleged to have been violated; it has no sufficient prospects for success (see BVerfGE 90, 22 <25 and 26>).

1. The reasoning of the constitutional complaint does not indicate a violation of Art. 6.1 of the Basic Law. The value-defining fundamental provision contained in Art. 6.1 of the Basic Law, in accordance with which the State is to protect and promote marriage and the family, obliges the immigration authority and courts when ruling on measures terminating residence to include in their considerations in line with their duties the family ties of the alien requesting residence with persons who are in Germany legally, i.e. in accordance with the weight of these ties (see BVerfGE 76, 1 <49 et seqq.>; 80, 81 <93>). The impugned rulings take adequate account of this.

The administrative court has explicitly accommodated in its considerations that the applicant’s parents and siblings live in Germany and that he lived with them until shortly prior to his incarceration. In accordance with the case-law of the Federal Constitutional Court (Bundesverfassungsgericht) it has distinguished in its weighing up concerning the co-habitation of parents with their adult children between a mere shared dwelling and a situation of assistance which gives rise to further protective effects under residence law (see BVerfGE 80, 81 <90 et seqq.>). There are no constitutional reservations here against the family ties having no decisive significance as against the interests of public safety with regard to protection against considerable criminal offences, despite the maintenance payments made to date by his family to the applicant. Adult children as a rule no longer need the assistance of their family, even if they still live with their parents for economic reasons; parents living in Germany can still provide simple economic support by transferring money. The applicant has not countered the abovementioned considerations of the administrative court, either with the complaint in the proceedings before the specialist court, or with the grounds contained in his constitutional complaint.

2. a) The core of the grounds contained in the application consists rather in it not being possible on principle to expel an alien who was born and brought up in Germany having a permanent residence permit who has committed criminal offences. It is questionable whether the applicant hence is also complaining of a violation of the protection of marriage and the family guaranteed by Art. 6.1 of the Basic Law. This reasoning is countered by the fact that his claims refers not to the weight of his family ties, but to other private ties in Germany, in other words his roots in the lifestyle in Germany. On the merits, it is likely rather to be a complaint of a violation of Art. 2.1, Art. 1.1 of the Basic Law in conjunction with the principle of proportionality (see Order of the 1st Chamber of the Second Senate of the Federal Constitutional Court of 1 March 2000 – 2 BvR 2120/99 –, NVwZ 2001, pp. 67 <69>). This is ultimately irrelevant in the instant case because nothing has changed as to the adjudication of the proportionality of the expulsion of the applicant as a result if this point of view were also to be accommodated in the framework of the examination of compatibility with Art. 6 of the Basic Law.

Where the applicant with his submission is claiming a violation of Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in accordance with the established case-law of the Federal Constitutional Court the constitutional complaint cannot be based on an alleged violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms as such (see Art. 93.1 No. 4a of the Basic Law, § 90.1 of the Federal Constitutional Court Act). The Federal Constitutional Court examines the interpretation and application of the European Convention for the Protection of Human Rights and Fundamental Freedoms initially only for breaches of the prohibition of arbitrariness of Art. 3.1 of the Basic Law (see BVerfGE 64, 135 <157>; 74, 102 <128>; Order of the 1st Chamber of the Second Senate of the Federal Constitutional Court of 1 March 2000 – 2 BvR 2120/99 –, NVwZ 2001, p. 67; Order of the 3rd Chamber of the Second Senate of the Federal Constitutional Court of 20 December 2000 – 2 BvR 591/00 –, NJW 2001, p. 2245). There is no indication of such a violation here.

b) Even if the human rights of the European Convention for the Protection of Human Rights and Fundamental Freedoms are not a direct constitutional examination standard in the German legal system, their interpretation by the European Court of Human Rights nevertheless exerts an influence on the interpretation of the fundamental rights of the Basic Law. The Basic Law is intended to accommodate international law, promotes the exercise of state sovereignty by international contract law and international cooperation, and hence as a rule may not be interpreted in such a way to give rise to a conflict with obligations of the Federal Republic of Germany under international law. The Federal Constitutional Court has stated on this – with reference to the principle of the presumption of innocence rooted in the rule of law and its legal expression in Art. 6.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms – (see BVerfGE 74, 358 <370>) that in interpreting the Basic Law also the content and state of development of the European Convention for the Protection of Human Rights and Fundamental Freedoms are to be taken into account where this does not lead to a restriction or lessening of the protection of fundamental rights in accordance with the Basic Law. For this reason, in this respect the case-law of the European Court of Human Rights is also said to serve as an aid in interpretation for the determination of the content and scope of fundamental rights and rule-of-law principles of the Basic Law. It has also applied these principles in relation to the prohibition of forced labour in Art. 12.2 and 3 of the Basic Law and in Art. 4.2 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (see BVerfGE 83, 119 <128>) as well as to the right to a fair trial under Art. 2.1 of the Basic Law in conjunction with the rule-of-law principle and under Art. 6.1 and 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (see Order of the 3rd Chamber of the Second Senate of the Federal Constitutional Court of 20 December 2000 – 2 BvR 591/00 –, NJW 2001, p. 2245).

In continuation of this case-law, hence, the case-law of the European Court of Human Rights on Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is to be used as an aid in interpretation also with regard to the instant question of the proportionality of the expulsion and extradition of an alien who was born and brought up in Germany (so-called second-generation alien) and has committed crimes in accordance with the fundamental rights of the Basic Law. Its use as an aid in interpretation means here in the instant cases of the expulsion of a second-generation alien that the consideration should include the aspects taken into account by the European Court of Human Rights in its consideration of these matters in the constitutional proportionality examination and that there should be a deliberation on the results of the weighing up carried out by the European Court of Human Rights.

c) It cannot be derived from the case-law of the European Court of Human Rights that the expulsion of convicted second-generation aliens who already entered the State Party as children or were born and brought up there as a rule being in violation of Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Whilst in some cases of this nature, the European Court of Human Rights has found a violation of Art. 8 of the Convention, it has stated in a large proportion of these cases that there has been no such violation. The case-law of the European Court of Human Rights on the question as to whether the expulsion of second-generation aliens can be justified in accordance with Art. 8.2 of the Convention, in particular "necessary in a democratic society", i.e. that it is proportionate, rather depends on the special circumstances of the individual case in question.

A study of the cases reveals that the case-law of the European Court of Human Rights shows strongly casuistic characteristics (correctly Hailbronner, AuslG, Kommentar, May 2003, § 45 marginal no. 38), so that restrictions are imposed in this respect on its use as an aid in interpretation. It nevertheless provides general guidelines as to the circumstances for the examination of the proportionality of cases of the present kind.

A major circumstance of the evaluation of proportionality is in the view of the European Court of Human Rights the gravity of the criminal offences committed by the expellee. Here, their gravity is primarily characterised by the severity of the sentences handed down (see for instance European Court of Human Rights, Judgment of 24 April 1996 – 15/1995/522/608 – Case of Boughanemi; Judgment of 21 October 1997 – 122/1996/741/940 – Case of Boujlifa, InfAuslR 1998, p. 1; ruling on admissibility of 4 October 2001 – 43359/98 – Case of Adam, EuGRZ 2002, p. 582), as well as by virtue of the nature of the criminal offence, particular severity attaching to drug-related crimes, for instance (see European Court of Human Rights, Judgment of 26 September 1997 – 123/1996/742/941 – Case of El Boujaidi; as well as Judgment of 26 September 1997 – 85/1996/704/896 – Case of Mehemi, InfAuslR 1997, p. 430, where the expulsion was nevertheless considered to be disproportionate because of other circumstances). Importance may also attach to the age of the person concerned on commission of the criminal offences: Minority on commission of the criminal offences by itself however does not lead to the disproportionality of expulsion (see European Court of Human Rights, Judgment of 29 January 1997 – 112/1995/618/708 – Case of Bouchelkia; ruling on admissibility of 4 October 2001 – 43359/98 – Case of Adam, EuGRZ 2002, p. 582).

In addition to the gravity of the criminal offences, the European Court of Human Rights examines the family situation of the expellee. This examination particularly considers whether the alien who has grown up on domestic territory is now married to a person who has the nationality of the country of residence, and whether they have children. Unmarried and childless aliens have less protection in terms of residence (see on the one hand European Court of Human Rights, Judgment of 29 January 1997 – 112/1995/618/708 – Case of Bouchelkia; ruling on admissibility of 4 October 2001 – 43359/98 – Case of Adam, EuGRZ 2002, p. 582; on the other hand Judgment of 26 September 1997 – 85/1996/704/896 – Case of Mehemi, InfAuslR 1997, p. 430; Judgment of 17 April 2003 – 52853/99 – Case of Yilmaz). Additionally, the ties to parents and siblings living on domestic territory are also taken into account, but these carry lesser weight if the adult alien does not rely on their support and assistance because of special circumstances (see European Court of Human Rights, Judgment of 13 July 1995 – 18/1994/465/564 – Case of Nasri, InfAuslR 1996, p. 1; Judgment of 17 April 2003 – 52853/99 – Case of Yilmaz). The expulsion of a second-generation alien who is married or who is the father of a child living on domestic territory is not considered disproportionate generally and independently of the further circumstances of the case – in particular of the gravity of the criminal offences they have committed – (see European Court of Human Rights, Judgment of 24 April 1996 – 15/1995/522/608 – Case of Boughanemi).

Further, the European Court of Human Rights takes account of the degree to which the alien still has ties to the state of their nationality. Knowledge of the language of the state of origin is frequently the taken to be a major indicator here – in view of the acceptability of integration into life there – (see European Court of Human Rights, Judgment of 26 March 1992 – 55/1990/246/317 – Case of Beldjoudi, EuGRZ 1993, p. 556; Judgment of 13 July 1995 – 18/1994/465/564 – Case of Nasri, InfAuslR 1996, p. 1; Judgment of 24 April 1996 – 15/1995/522/608 – Case of Boughanemi; Judgment of 29 January 1997 – 112/1995/618/708 – Case of Bouchelkia; Judgment of 26 September 1997 – 123/1996/742/941 – Case of El Boujaidi; Judgment of 30 November 1999 – 34374/97 – Case of Baghli, NVwZ 2000, p. 1401; ruling on admissibility of 4 October 2001 – 43359/98 – Case of Adam, EuGRZ 2002, p. 582), although the European Court of Human Rights did not consider expulsion to be disproportionate in one case, even though the applicant had claimed a lack of linguistic knowledge (see Judgment of 21 October 1997 – 122/1996/741/940 – Case of Boujlifa, InfAuslR 1998, p. 1). Additionally, the European Court of Human Rights has also several times taken account of the fact that the alien had retained the nationality of their state of origin and had not expressed a wish to acquire the nationality of his state of residence (see European Court of Human Rights, Judgment of 24 April 1996 – 15/1995/522/608 – Case of Boughanemi; Judgment of 29 January 1997 – 112/1995/618/708 – Case of Bouchelkia; Judgment of 26 September 1997 – 123/1996/742/941 – Case of El Boujaidi; Judgment of 21 October 1997 – 122/1996/741/940 – Case of Boujlifa, InfAuslR 1998, p. 1; Judgment of 30 November 1999 – 34374/97 – Case of Baghli, NVwZ 2000, p. 1401).

Over and above this, it can be recognised in the case-law of the European Court of Human Rights that since the Judgment of 24 April 1996 – 15/1995/522/608 – Case of Boughanemi – the Court appears to lean towards greater severity in the majority of cases, and more frequently regards the expulsion of second-generation alien convicts as proportionate (see Hailbronner, loc. cit., § 45 marginal number 38). This is shown not only with aliens who have committed drug-related crimes (see for instance European Court of Human Rights, Judgment of 26 September 1997 – 123/1996/742/941 – Case of El Boujaidi; Judgment of 30 November 1999 – 34374/97 – Case of Baghli, NVwZ 2000, p. 1401), but also in general terms with unmarried and childless aliens who have been sentenced to several years’ imprisonment or youth custody and understand the language of their country of origin (see European Court of Human Rights, Judgment of 29 January 1997 – 112/1995/618/708 – Case of Bouchelkia; ruling on admissibility of 4 October 2001 – 43359/98 – Case of Adam, EuGRZ 2002, p. 582; see also Judgment of 21 October 1997 – 122/1996/741/940 – Case of Boujlifa, InfAuslR 1998, p. 1, where the Court considered extradition to be proportionate although according to information he provided the applicant did not understand the language of his country of origin, and Judgment of 24 April 1996 – 15/1995/522/608 – Case of Boughanemi, where the applicant had a child with a native woman).

d) Taking account of the case-law of the European Court of Human Rights on the expulsion of second-generation alien convicts, it cannot be recognised that the expulsion of the applicant is disproportionate, irrespective of whether it is to be measured against Art. 6.1 of the Basic Law, Art. 2.1 of the Basic Law or both provisions on fundamental rights.

It should initially be presumed here that the aspects that are important in the case-law of the European Court of Human Rights already take account in a fundamentally adequate manner of significant aspects of the gravity of the criminal offences committed by the expellee and their age in the division provided for in the Aliens Act in to obligatory, regular and potential expulsion (see §§ 45, 47 and 48 of the Aliens Act) as well as by the special protection against expulsion for aliens who were born in Germany or entered as minors (see § 48.1 sentence 1 No. 2 of the Aliens Act). As explained, the expulsion of second-generation aliens in accordance with Art. 8.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is not disproportionate in general terms. The birth of the applicant in Germany is hence already taken into account by granting special protection against expulsion in accordance with § 48.1 sentence 1 No. 2 of the Aliens Act.

With the additionally offered concrete proportionality examination, it is to be examined in favour of the applicant in addition to the circumstance that his parents and siblings live here, above all that he was still young when he committed the criminal offences which led to his expulsion, namely a juvenile on the occasion of one offence, and hence a minor, and otherwise an adolescent (between 18 and 21), to whom criminal law relating to young people was still applied. This circumstance by itself does not make the expulsion of a second-generation alien disproportionate. Rather, furthermore in particular the gravity of the criminal offences committed by the expellee, his family situation and his ties with the state of his nationality, as well as where appropriate other particularities of the individual case, are to be included in the consideration.

Nothing else emerges from the Case of Moustaquim (see Judgment of 18 February 1991 – 31/1989/191/291 –, EuGRZ 1993, p. 552) in which the European Court of Human Rights evaluated the expulsion of an alien who had been sentenced to two years’ and two months’ imprisonment because of several robberies committed as a juvenile and of a large number of cases of aggravated and attempted aggravated theft, as a violation of Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Firstly, this case shows the particularity, to which the European Court of Human Rights pointed, namely that between the last crime of which the expellee was accused and the expulsion order a relatively long time of more than three years intervened, during which he was not in detention for almost 23 months (see No. 44 of the ruling). There is no equivalent of this in the instant case. Secondly, the instant case is different from that one also in the gravity of the criminal offences committed by the applicant and the punishment imposed on him. Whilst in the Case of Moustaquim the expellee had been sentenced to two years’ and two months’ imprisonment, here the applicant was sentenced to youth custody of three years and six months. The former was convicted in a large number of cases (22) of robbery, aggravated theft and attempted aggravated theft, but in the instant case criminal offences against physical integrity and against the freedom of self-determination were added, whereby the Local Court (Amtsgericht) in its judgment on which the expulsion is based found that the applicant in commission of the offences had treated others excessively brutally, and without consideration, and this brutality towards others had already been shown in the previous convictions. Moreover, the administrative court explained in detail why it did not evaluate the criminal offences committed by the applicant despite his youth as youth-specific, but as essential conduct which also in this sense differs from the Case of Moustaquim. Over and above this, it is dubious to what degree the ruling of the European Court of Human Rights in the 1991 Case of Moustaquim has been made obsolete by rulings from more recent times and is no longer to be used as an aid in interpretation. In accordance with the more recent case-law of the European Court of Human Rights, the expulsion and extradition of an unmarried, childless second-generation alien with a knowledge of the language of their country of origin who has been sentenced to three to four years’ imprisonment or youth custody has not been regarded as disproportionate. This applies not only to cases of drug-related crime (see European Court of Human Rights, Judgment of 30 November 1999 – 34374/97 – Case of Baghli, NVwZ 2000, p. 1401), but also to other grievous criminal offences (see European Court of Human Rights, ruling on admissibility of 4 October 2001 – 43359/98 – Case of Adam, EuGRZ 2002, p. 582; see also Judgment of 24 April 1996 – 15/1995/522/608 – Case of Boughanemi, where the applicant was even the father of a small child).

In particular in the abovementioned Case of Adam, which was even unanimously categorised by the European Court of Human Rights as manifestly ill-founded, the circumstances taken as a reference by the European Court of Human Rights as being relevant to consideration with regard to their nature and weight are largely equivalent to those in the instant case. Both second-generation aliens were sentenced to a total of three years’ and six months’ imprisonment for largely equivalent criminal offences (in particular robbery by blackmail, theft and threat), which they had committed in part as minors, and in part as young adults. Both were unmarried and childless at the relevant times. One may assume of both that they understand the language of the state of their nationality because they lived in the family of their origin until they were juveniles (see European Court of Human Rights, ruling on admissibility of 4 October 2001 – 43359/98 – Case of Adam, EuGRZ 2002, p. 582 <584>). In the instant case, the administrative court also pointed out that the applicant also writes in Turkish, so that – also because of his youth – integration in Turkey was not impeded by any weighty obstacles in this respect. The applicant did not deny by means of the constitutional complaint in a substantiated manner having this linguistic knowledge, as was found by the specialist courts. Where in the Case of Adam the European Court of Human Rights also noted as to the family ties that the applicant in that case, in addition to being unmarried and childless, no longer lived with his family since he had been transferred to a youth home at the age of 16, this may not give rise to a difference of decisive weight as against the instant case. Both in accordance with the case-law of the Federal Constitutional Court (see BVerfGE 80, 81 <94 and 95>) and of the European Court of Human Rights (see Judgment of 17 April 2003 – 52853/99 – Case of Yilmaz) the relationships between an adult child and his/her parents do not make any further residence law protection by Art. 6.1 of the Basic Law or Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms appear appropriate unless the adult child relies on the help of the parents and this help can only be provided on domestic territory.

In accordance with all this, it can be found that expulsion is not disproportionate with regard to Art. 6.1 of the Basic Law and Art. 2.1, Art. 1.1 of the Basic Law, also taking account of the case-law of the European Court of Human Rights with the applicant as an unmarried, childless second-generation alien who has been sentenced to several years’ imprisonment or youth custody, and who understands at least the basics of the language of the State of his nationality.

3. Where, finally, the applicant complains of a violation of European law referring to Article 14 of Decision 1/80 of the EC-Turkey Association Council and the proceedings being pursued against the Federal Republic of Germany in respect of a violation of directive 64/221/EEC, he has offered no substantiation to explain either this violation or a resulting violation of fundamental rights.

III.

The non-admission of the constitutional complaint therewith concludes the application to issue an injunction.

In accordance with § 93d.1 sentence 3 of the Federal Constitutional Court Act, no further grounds are provided.

This ruling is non-challengeable