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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. ... against a) the order of the Higher Administrative Court (Oberverwaltungsgericht) for the Land North Rhine-Westphalia of 19 August 2003 – 18 B 1503/03 –, b) the order of Düsseldorf Administrative Court (Verwaltungsgericht) of 15 July 2003 – 24 L 1977/03 – and application to issue an injunction ... 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. 1 He was born in Germany in 1983 and grew up here, where his parents and siblings 2 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 3 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 co- ercion, coercion in concurrence of offences with threat, threat in two cases in concur- rence of offences with theft resembling robbery, coercion and theft, as well as in re- spect 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 or- 4 der of 9 May 2003, ordered the immediate enforcement of this expulsion and an- nounced 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 al- legedly be taken here on expulsion solely on discretion. The expulsion had been nec- essary 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 5 1/10 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 6 Law (Grundgesetz – GG) in conjunction with Art. 3 and Art. 8 of the European Con- vention 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 medi- um 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 lan- guage 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 Ger- many 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 admis- 7 sion preconditions of § 93a.2 of the Federal Constitutional Court Act (Bundesverfas- sungsgerichtsgesetz – 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 previ- ous 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 8 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 pro- mote marriage and the family, obliges the immigration authority and courts when rul- ing 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 9 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 Con- 2/10 stitutional 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 con- stitutional 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 Ger- many 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 be- 10 ing 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 pro- tection of marriage and the family guaranteed by Art. 6.1 of the Basic Law. This rea- soning 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 irrele- vant 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 al- so 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 Euro- 11 pean Convention for the Protection of Human Rights and Fundamental Freedoms, in accordance with the established case-law of the Federal Constitutional Court the con- stitutional complaint cannot be based on an alleged violation of the European Con- vention 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 Euro- pean Convention for the Protection of Human Rights and Fundamental Freedoms ini- tially 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 Sec- ond 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. 3/10 b) Even if the human rights of the European Convention for the Protection of Human 12 Rights and Fundamental Freedoms are not a direct constitutional examination stan- dard in the German legal system, their interpretation by the European Court of Hu- man 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 interna- tional 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 interna- tional 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 ex- pression in Art.