CASE OF ÜNER v. THE NETHERLANDS
(Application no. 46410/99)
18 October 2006
This judgment is final but may be subject to editorial revision.
In the case of Üner v. the Netherlands,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr L. Wildhaber,
Mr C.L. Rozakis,
Mr J.-P. Costa,
Sir Nicolas Bratza,
Mr B.M. Zupančič,
Mr G. Bonello,
Mr L. Caflisch,
Mr R. Türmen,
Mr J. Hedigan,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mr L. Garlicki,
Mr E. Myjer,
Ms D. Jočienė,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 5 April 2006 and on 30 August 2006,
Delivers the following judgment, which was adopted on the last mentioned date:
There appeared before the Court:
(a) for the respondent Government
Mrs J. Schukking, Agent,
Mr M. Kuijer and
Ms M.-L. van Dongen, Advisers;
(b) for the applicant
Mr R. Dhalganjansing Counsel.
The Court heard addresses by Mr Dhalganjansing, Mrs Schukking and Mr Kuijer as well as their partial replies to questions put by judges. Both parties requested, and were granted, permission to complete their replies in writing. Replies were received from the Government on 19 April 2006 and from the applicant on 19 April and 1 May 2006.
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Netherlands law with regard to aliens
B. Netherlands criminal law
“A convicted person sentenced to a custodial sentence for a determinate period of which more than one year is to be executed shall be granted early release when two thirds of that sentence have been served.”
Section 15a of the Criminal Code, in so far as relevant, provides:
“1. Early release may be postponed or withheld where:
a. the convicted person, on grounds of the inadequate development or pathological disturbance of his mental faculties, has been placed in an institution for the treatment of persons subject to an order for confinement in a custodial clinic and where continuation of treatment is required;
b. the convicted person has been convicted in a final judgment of a serious offence for which, pursuant to section 67 paragraph 1 of the Code of Criminal Procedure (Wetboek van Strafvordering), detention on remand (voorlopige hechtenis) is allowed and where the offence was committed after the execution of his sentence commenced;
c. there is evidence that the convicted person has otherwise grossly misbehaved after the execution of his sentence commenced;
d. the convicted person evades, or attempts to evade, his sentence after its execution has commenced.
2. If the prosecuting authorities (Openbaar Ministerie) charged with the execution of the sentence consider that, on one of the grounds mentioned in the first paragraph, there is cause for postponing or withholding early release, it shall lodge a written request to that effect with the Arnhem Court of Appeal without delay. ...”
III. OTHER RELEVANT MATERIALS
A. Relevant instruments of the Council of Europe
“4. As regards the protection against expulsion
a. Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights' constant case-law, of the following criteria:
- the personal behaviour of the immigrant;
- the duration of residence;
- the consequences for both the immigrant and his or her family;
- existing links of the immigrant and his or her family to his or her country of origin.
b. In application of the principle of proportionality as stated in Paragraph 4.a, member states should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member states may provide that a long-term immigrant should not be expelled:
- after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years' imprisonment without suspension;
- after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension.
After twenty years of residence, a long-term immigrant should no longer be expellable.
c. Long-term immigrants born on the territory of the member state or admitted to the member state before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen.
Long-term immigrants who are minors may in principle not be expelled.
d. In any case, each member state should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.”
c. to undertake to ensure that the ordinary-law procedures and penalties applied to nationals are also applicable to long-term immigrants who have committed the same offence;
g. to take the necessary steps to ensure that in the case of long-term migrants the sanction of expulsion is applied only to particularly serious offences affecting state security of which they have been found guilty;
h. to guarantee that migrants who were born or raised in the host country and their under-age children cannot be expelled under any circumstances;
The Committee of Ministers replied to the Assembly on the matter of non-expulsion of certain migrants on 6 December 2002. It considered that Recommendation (2000)15 addressed many of the concerns of the Assembly and it was thus not minded to devise any new standards.
“...member States should have proper regard to criteria such as the person's place of birth, his age of entry on the territory, the length of residence, his family relationships, the existence of family ties in the country of origin and the solidity of social and cultural ties with the country of origin. Special consideration should be paid to the best interest and wellbeing of children.”
B. Comparative law
I. PRELIMINARY ISSUE: SCOPE OF THE GRAND CHAMBER'S JURISDICTION
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private and 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.”
A. The Chamber judgment
B. The parties' submissions before the Grand Chamber
1. The applicant
2. The Government
The Government did not deny that the applicant had strong ties with the Netherlands, but noted that he had chosen not to opt for Dutch nationality even though he had been eligible to do so since 1987. They took the view that, having come to the Netherlands at the age of twelve, he must still have some ties with his native Turkey. There were, in addition, no insurmountable obstacles to the applicant's partner and children following him to Turkey, in particular as the children were still very young – much younger in fact than the applicant had been when he first moved to the Netherlands.
3. Third party
D. The Court's assessment
1. General principles
- the nature and seriousness of the offence committed by the applicant;
- the length of the applicant's stay in the country from which he or she is to be expelled;
- the time elapsed since the offence was committed and the applicant's conduct during that period;
- the nationalities of the various persons concerned;
- the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life;
- whether the spouse knew about the offence at the time when he or she entered into a family relationship;
- whether there are children of the marriage, and if so, their age; and
- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.
- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
- the solidity of social, cultural and family ties with the host country and with the country of destination.
As to the first point, the Court notes that this is already reflected in its existing case law (see, for example, Şen v. the Netherlands, no. 31465/96, § 40, 21 December 2001, Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 47, 1 December 2005) and is in line with the Committee of Ministers' Recommendation Rec(2002)4 on the legal status of persons admitted for family reunification (see paragraph 38 above).
As to the second point, it is to be noted that, although the applicant in the case of Boultif was already an adult when he entered Switzerland, the Court has held the “Boultif criteria” to apply all the more so (à plus forte raison) to cases concerning applicants who were born in the host country or who moved there at an early age (see Mokrani v. France, no. 52206/99, § 31, 15 July 2003). Indeed, the rationale behind making the duration of a person's stay in the host country one of the elements to be taken into account lies in the assumption that the longer a person has been residing in a particular country the stronger his or her ties with that country and the weaker the ties with the country of his or her nationality will be. Seen against that background, it is self-evident that the Court will have regard to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there.
2. Application of the above principles in the instant case
Even though it would not wish to underestimate the practical difficulties entailed for his Dutch partner in following the applicant to Turkey, the Court considers that in the particular circumstances of the case, the family's interests were outweighed by the other considerations set out above (see paragraphs 62 and 63).
Accordingly, there has been no violation of Article 8 of the Convention.
FOR THESE REASONS, THE COURT
Holds by fourteen votes to three that there has been no violation of Article 8 of the Convention.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 18 October 2006.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) Concurring opinion of Mr Maruste;
(b) Joint dissenting opinion of Mr Costa, Mr Zupančič and Mr Türmen.
CONCURRING OPINION OF JUDGE MARUSTE
While being in agreement with the majority in finding no violation in this case, I would like to highlight the point that an ability to determine what constitutes a crime and what should be the consequences (penalty) is part and parcel of the very sovereignty of the State.
It is widely recognised in the theory and practice of criminal law in European States that the penalty (sanction) for a crime may incorporate several (linked) elements. For example, in addition to deprivation of liberty or a fine (as the main penalty), the sanction may also encompass a ban on exercising certain activities or professions, withdrawal of a licence or licences, confiscation of property, withdrawal of a permanent residence permit, and so on. It is up to the national authorities to determine, in the particular circumstances of their country and the case, what measures are best designed to prevent disorder or crime and protect health, morals, national security or public safety.
The same applies in respect of expulsion as part of a criminal sanction. This practice has also been recognised as permissible by the Court, provided that the measure is prescribed by law, determined by a court and is necessary in a democratic society and proportionate to the aim pursued.
JOINT DISSENTING OPINION OF JUDGES COSTA, ZUPANČIČ AND TÜRMEN
. The question whether the expulsion of a foreign national from the territory of a State is in breach of Article 8 of the Convention has been the subject of numerous judgments by the European Court of Human Rights since the Berrehab judgment nearly twenty years ago1.
time to be determined, and who held a long term residence permit, should be granted in that Member State a set of uniform rights which were as near as possible to those enjoyed by EU citizens. This was reaffirmed by the Seville European Council of 21 and 22 June 2002, when the Heads of State and Government of the Union expressed their willingness to develop a common policy on the separate but closely related issues of asylum and immigration. They added that the integration of immigrants entailed on their part both rights and obligations in relation to the fundamental rights recognised within the Union.
11. Berrehab v. the Netherlands, judgment of 21 June 1988, Series A no. 138.
22. Maaouia v. France [GC], no. 39652/98, ECHR 2000-X.
33. Five judges expressed concurring opinions and two expressed dissenting opinions.
11. See Boultif v. Switzerland, no. 54273/00, ECHR 2001-IX, and in particular § 48.
11. As in the case of Maaouia v. France, cited above, and referred to in paragraph 56 of the judgment.
22. See Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, p. 15, § 31, and subsequent settled case-law.