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KAYA v. GERMANY - 31753/02 [2007] ECHR 538 (28 June 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/538.html
Cite as:
[2007] 2 FCR 527,
[2007] Imm AR 802,
[2007] ECHR 538
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FIRST
SECTION
CASE OF
KAYA v. GERMANY
(Application
no. 31753/02)
JUDGMENT
STRASBOURG
28
June 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Kaya v. Germany,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs E. Steiner,
Mr K. Hajiyev,
Mrs R.
Jaeger,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 7 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 31753/02) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Turkish national, Mr
Erkan Kaya (“the applicant”), on 21 August 2002.
The
applicant, who had been granted legal aid, was represented by Ms I.
Baysu, a lawyer practising in Mannheim, Germany. The German
Government (“the Government”) were represented by their
Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin,
of the German Ministry of Justice. The Turkish Government exercised
its right to intervene (Article 36 § 1 of the Convention and
Rule 44 § 1 (b)).
The
applicant alleged, in particular, a violation of Article 8 of the
Convention in that he had been expelled from German territory
following a criminal conviction.
By
a decision of 11 May 2006 the Court declared the application partly
admissible.
The
applicant and the German Government each filed further written
observations (Rule 59 § 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 § 3 in fine), the parties replied in writing to
each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1978 and lives in Istanbul in
Turkey.
1. General background
The
applicant was born in Mannheim in Germany, where he lived with his
parents and his younger sister and attended school. On an unspecified
date the applicant's brother died in an accident. His parents have
been lawfully resident in Germany for more than thirty years.
According to the applicant's submissions, he visited Turkey only two
or three times during his holidays.
On
19 May 1994 the competent authorities granted the applicant a
permanent residence permit.
On
31 January 1996 the Mannheim public prosecutor discontinued
juvenile-delinquency proceedings brought against the applicant for
grievous bodily harm.
In
1998 the applicant completed his apprenticeship as a car mechanic. In
July 1998 he worked for three or four weeks in Turkey.
2. Proceedings for criminal offences
On
27 January 1999 the applicant was arrested and subsequently detained
on remand.
On
8 September 1999 the Mannheim District Court (Amtsgericht)
convicted the applicant of two counts of attempted aggravated
trafficking in human beings (versuchter schwerer Menschenhandel),
several counts of battery and aggravated battery (schwere
gefährliche Körperverletzung), procurement
(Zuhälterei), purchasing illegal
drugs (Erwerb von Betäubungsmitteln), two counts
of drunken driving and two counts of insulting behaviour and
sentenced him to three years and four months' imprisonment. The
District Court found that between June 1998 and January 1999 the
applicant had forced his former partner to surrender the main part of
her earnings acquired through prostitution. To that end, he had used
physical violence, on one occasion kicking the woman's face with his
shod foot. In January 1999 the applicant – together with two
accomplices, including his former partner – had attempted on
two occasions to force another woman into prostitution. The applicant
and his male accomplice had intended to use the earnings to finance
their upkeep and their drug consumption.
To
that end, the applicant and his accomplices had first locked the
woman in. Later on, the applicant had encouraged his former partner
to beat the woman and her sister, who had aided her resistance. In
the applicant's presence and with his explicit consent, both women
had been punched at least ten times in their face.
The
applicant was also found guilty of having purchased five grams of
cocaine on one occasion, together with one accomplice, and of having
insulted several police officers. In view of the fact that the
applicant had been twenty years old when committing those offences
and that there was no indication of retarded development, the
District Court did not apply juvenile but adult criminal law.
When
assessing the applicant's sentence, the District Court treated as
mitigating factors the fact that the applicant had no previous
convictions and that he had confessed to the offences during the main
proceedings. It emphasised, however, that the applicant had acted as
the driving force in carrying out the crimes committed jointly
against the second victim. The District Court further noted that the
applicant had acted with “incredible brutality”
(unglaubliche Brutalität) towards his second victim,
after having already exploited his former partner. The applicant had
taken around 48,000 German marks from the latter without leaving her
the necessary resources to cater to her own and her child's needs,
his intention being to use the money for alcohol, drugs and other
purposes of his own. The District Court put special emphasis on the
exceptional brutality with which the applicant had exploited his
former partner. Lastly, it considered the degree of disdain he had
shown towards the police officers. Only the applicant's confession
had prevented the District Court from imposing a prison sentence of
more than four years, which would have meant relinquishing the
examination of the case in favour of the Regional Court.
3. Expulsion proceedings
On
23 November 1999 the Karlsruhe Regional Government
(Regierungspräsidium) ordered the applicant's expulsion
to Turkey. It was announced that he would be deported on his release
from prison.
Although
the applicant was born in Germany and possessed a valid residence
permit, the Regional Government considered that his conviction for
several serious offences made it necessary to expel him under section
47(1) and (3) and section 48(1) of the Aliens Act (Ausländergesetz
– see “Relevant domestic law” below) for serious
reasons relating to public safety. Regard being had to the reasons
given for the applicant's criminal conviction, his expulsion was
necessary in the interest of general deterrence (Generalprävention).
The
Regional Government also considered the applicant's expulsion
justified in this particular case because there was a high risk that
he would continue to pose a serious threat to public safety. The
seriousness of the offences committed by the applicant demonstrated
his high criminal potential and his violent disposition. His criminal
offences showed that he was not willing to respect the rights and
dignity of his fellow human beings. These factors led to a serious
danger of recidivism (erhebliche Wiederholungsgefahr).
The
Regional Government further found that the applicant's expulsion was
proportionate and complied with Article 8 § 2 of the Convention.
The applicant was a single adult and could be reasonably expected to
live in Turkey. He had not submitted any evidence that his parents
depended on his support. His parents would be in a position to
maintain contact with him by way of visits and exchanging letters.
On
3 January 2000 the applicant applied to the Karlsruhe Administrative
Court (Verwaltungsgericht) for judicial review of the
expulsion order. He stated, inter alia, that his parents –
especially his mother, but also, to a lesser degree, his father –
were suffering from serious depression caused by the earlier loss of
their other son. The applicant's current situation had aggravated
their condition, obliging them to seek medical treatment. His
deportation might cause his mother to suffer a complete psychological
breakdown. He was, moreover, ready to undergo social training and to
come to terms with his former alcohol abuse. With respect to his
prospects in Turkey, the applicant alleged that he spoke only
colloquial Turkish and had but limited writing skills in that
language.
In
a judgment of 24 February 2000 the Administrative Court rejected the
applicant's motion. It concurred with the reasoning set out in the
expulsion order to the effect that there were sufficient indications
that the applicant would continue to pose a danger to public order
and safety. The alleged hardships suffered by the applicant's parents
did not justify a different assessment of the facts.
The
applicant subsequently applied for leave to appeal. In a letter of
10 January 2001 he submitted, inter alia, that he had
been born in Germany, where he had gone to school and received
vocational training. His whole family lived in Germany. He further
submitted that he did not have any connection with Turkey and that he
had poor knowledge of the Turkish language. His expulsion would lead
to the destruction of his family.
On
7 March 2001 the Baden-Württemberg Administrative Court of
Appeal (Verwaltungsgerichtshof) refused the applicant leave to
appeal. It found, firstly, that the applicant's submissions were not
capable of raising serious doubts as to the correctness of the
Administrative Court's judgment. Furthermore, he had not established
that an appeal would be justified on the ground of the legal
complexity of the subject matter. It was obvious that the
interference with the applicant's right to respect for his private
and family life, as guaranteed by Article 8 of the Convention, was
justified under paragraph 2 of that Article, regard being had in
particular to the serious danger of recidivism.
On
5 April 2001 the applicant was deported from prison to Turkey. The
remaining third of his prison sentence was suspended in view of his
deportation.
On
7 April 2001 the applicant lodged a constitutional complaint. On 12
February 2002 the Federal Constitutional Court, sitting as a panel of
three judges, refused to accept the applicant's complaint for
adjudication. That decision was served on the applicant on
21 February 2002.
4. Further developments
On
20 May 2002 the applicant married a German national of Turkish
origin, who lives in Germany. On 28 December 2003 a child was born to
the couple.
On
16 September 2002 the applicant requested to have a time-limit placed
on his exclusion order. On 19 July 2004 the Karlsruhe Regional
Government limited the period of validity of the applicant's
exclusion order until 5 October 2006, i. e. five years from the
date of his deportation. The limitation was subject to the condition
that the applicant was to submit evidence that he had not committed
any further criminal offences and that he was still married to his
German wife, that he was to submit a hair analysis proving that he
did not consume drugs and that he was to reimburse the expenses
incurred in connection with his deportation.
On
11 April 2006 the Karlsruhe Administrative Court rejected the
applicant's application for judicial review aimed at further
shortening the time-limit set to his exclusion order.
By
the end of February 2007, the applicant was still residing in Turkey.
II. RELEVANT DOMESTIC LAW
The
rights of entry and residence for foreigners were governed until
31 December 2004 by the Aliens Act (Ausländergesetz)
and from 1 January 2005 by the Residency Act
(Aufenthaltsgesetz).
By
section 47(1), point 1, of the Aliens Act, a foreigner is to be
expelled where he or she has been sentenced to a minimum of three
years' imprisonment for having wilfully committed one or more
criminal offences.
If
a foreigner was born in Germany and is in possession of a permanent
residence permit, he or she may only be expelled if serious reasons
relating to public safety and order justify the expulsion (section
48(1)). Generally, this will be the case where section 47(1) applies
(Regelausweisung).
Pursuant
to section 8(2), an alien who has been expelled is not permitted to
re-enter German territory. This effect can, as a rule (in der
Regel), be limited in time upon application. A similar provision
is contained in section 11 of the Residency Act.
According
to section 44 (1) no.1 of the Aliens Act and section 51 (1)
no. 5 of the Residency Act, an alien's residence permit expires on
issue of an expulsion order against him.
Section
85 of the Aliens Act, as in force from 1 July 1993 until 31 December
1999, provided as follows:
“(1) An alien who applies for naturalisation
between the age of 16 and 23 shall be naturalised provided that he or
she
1. loses or relinquishes his or her former nationality,
2. has been legally residing in Germany for eight years,
3. has attended a school for six years, including at
least four years of attendance at a school providing general
education, and
4. has not been convicted of a criminal offence.
(2) There shall be no entitlement to naturalisation if
the alien does not possess a residence permit. Naturalisation may be
denied if there is a ground for expulsion.”
Section
27 of the Residency Act provides that a residence permit is to be
granted for reasons of family reunion. By section 28, a residence
permit is to be granted to a German national's spouse or minor child,
or to the parent of a minor German national in order to exercise
parental authority.
THE LAW
The
applicant complained that his expulsion had violated his right to
respect for his private and family life under Article 8 of the
Convention, which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
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.”
1. The applicant's submissions
The
applicant submitted that his expulsion had interfered with his rights
under Article 8 under the limbs of both private and family life. This
interference was disproportionate in view of the fact that he had
lived his whole life in Germany, that he had not maintained any
contact with Turkey and that his family relied on his support. Being
the oldest son, he played a special role in the family. He had only
poor knowledge of the Turkish language, as his parents originated
from Bosnia and the family spoke Bosnian at home. This was not
disproved by the fact that he had sent letters in Turkish to his
mother from prison, as he had dictated the letters in German to his
Turkish cellmate.
He
further pointed out that both his parents had been suffering from
depression since his brother had died in an accident several years
earlier. The applicant's presence was essential for their well-being.
In that connection, he submitted a medical certificate of 5 May 2000
attesting that both his parents were being treated for depression as
a result of his current personal circumstances.
With
regard to his criminal conviction, the applicant emphasised that he
had been only twenty years of age at the time of the offences and
that he had been addicted to drugs. He further pointed out that he
had not committed the offences on his own, but jointly with a more
experienced
co-offender.
The
offences had all been committed during a short period of not more
than six months. Apart from that conviction, he had no criminal
record, as the juvenile proceedings which had been discontinued when
he was seventeen years old could not be taken into account in the
present proceedings. He had come to terms during his detention with
the reasons why he had committed the offences, and did not pose a
risk to public safety. He further alleged that the domestic courts
had failed to carry out a thorough assessment of the risk of his
re-offending. He had not committed any further offences during the
five years following his expulsion.
Even
if allowed re-entry to Germany on the expiry of the period of
validity of his exclusion order, he would not regain his former
residence status. He would only obtain a limited residence permit,
which he would lose if he separated from his wife within two years
following re-entry. Furthermore, he would be compelled to serve the
remainder of his prison sentence, which had been suspended in view of
his deportation. By letter of 31 January 2007 the applicant informed
the Court that he had not been granted a residence permit, as he had
been unable to submit an attestation of his being registered as a
resident. He alleged that the Turkish authorities did not issue such
documents.
Lastly,
the applicant alleged that an application for naturalisation prior to
his criminal conviction would not have had any prospect of success,
as at the time he had not earned enough money for his own upkeep.
2. The Government's submissions
In
the Government's submission, the applicant's expulsion had interfered
only with his right to the enjoyment of his private life, since by
the time the expulsion order had become final he was an adult and had
not yet founded a family of his own. The applicant had not
established that he relied on his family's support or that his family
relied on his support to an extent which necessitated his presence in
Germany. The fact that the applicant's parents had suffered as a
result of their separation from him and that this might lead to
depression did not mean that they depended on his presence in
Germany. Furthermore, the Government argued, the applicant's sister
should also be in a position to offer them a certain amount of
support.
The
applicant's expulsion had been in accordance with the law and
necessary for serious reasons relating to public order and security,
namely the risk of his reoffending.
With
regard to the question whether the domestic authorities had struck a
fair balance between the competing interests at stake, the Government
accepted that the applicant belonged to the group of so-called
“second-generation” immigrants and was entitled to a
higher degree of protection against expulsion. However, they
submitted that the gravity of the offences committed by the
applicant, which could not be regarded as mere examples of juvenile
delinquency, justified his expulsion. In that connection, the
Government emphasised the extreme brutality and the duration of his
criminal activities, as well as the fact that the criminal court had
identified him as the driving force behind the crimes committed
jointly. Furthermore, the applicant had previously committed other
violent acts. The fact that he consumed drugs further justified the
assumption that he would commit additional crimes in order to procure
drugs for himself.
The
Government further submitted that the applicant had failed to
integrate into the social and economic environment in Germany. Having
finished his training as a car mechanic, he had not shown any
inclination to find appropriate employment. His family of origin had
not prevented him from committing criminal offences. In so far as his
social prospects had improved through the founding of his own family,
that could not be taken into account in the proceedings relating to
his expulsion. The Government did not attach credence to the
applicant's allegation that he had not maintained any contact with
Turkey and that he did not have sufficient knowledge of the Turkish
language. They pointed out that during his detention on remand he had
written letters to his mother in Turkish.
The
Government further emphasised that the applicant had not applied for
naturalisation prior to his criminal conviction, even though he would
have satisfied the necessary prerequisites laid down in section 85(1)
of the Aliens Act, as in force until 31 December 1999 (see Relevant
domestic law, above).
The
Government lastly pointed out that the domestic authorities had had
to decide on the setting of a time-limit in separate proceedings
which did not form the subject matter of the present application. In
its decision of 19 July 2004 the Karlsruhe Regional Government
had carried out a fresh assessment of the competing interests at
stake, including the applicant's new family bonds. They further
pointed out that the applicant had failed to exhaust domestic
remedies with respect to the duration of his exclusion, as he had not
appealed against the Karlsruhe Administrative Court's judgment of 11
April 2006.
If
he fulfilled the conditions set out in the decision of 19 July 2004
(see paragraph 27 above), he would be permitted to re-enter German
territory. Having regard to his German wife and child, he would be
granted a residence permit. By letters of 22 February and 7 March
2007 the Government further submitted that the applicant had
presented the confirmation of registration and fulfilled all
conditions set down in the Regional Government's decision of 19 July
2004 (see § 27 above). He was thus no longer prevented by the
exclusion order from re-entering the German territory.
3. The Court's assessment
a) General principles
The
Court reiterates at the outset that the Convention does not guarantee
the right of an alien to enter or to reside in a particular country
and that a State is entitled, subject to its treaty obligations, to
control the entry of aliens into its territory and their residence
there. In pursuance of their task of maintaining public order,
Contracting States have the power to expel an alien convicted of
criminal offences. However, their decisions in this field must, in so
far as they may interfere with a right protected under paragraph 1 of
Article 8, be in accordance with the law and necessary in a
democratic society, that is to say justified by a pressing social
need and, in particular, proportionate to the legitimate aim pursued
(see, most recently, Üner v. the Netherlands [GC], no.
46410/99, § 54, ECHR 2006 ...).
As
the Grand Chamber has affirmed in its Üner judgment,
these principles apply regardless of whether an alien entered the
host country as an adult or at a very young age, or was even born
there. In particular, Article 8 of the Convention does not
confer to persons who were born in a member State an absolute right
not to be expelled from the territory of that State (see Üner,
cited above, §§ 55-56).
The Grand Chamber has further held that an alien's expulsion
following his criminal conviction does not constitute double
punishment, either for the purposes of Article 4 of Protocol No. 7 or
in a more general way (see Üner, cited above, § 56).
Nevertheless,
there are circumstances where the expulsion of an alien will give
rise to a violation of Article 8 of the Convention and it is evident
that the Court will have regard to the special situation of aliens
who have spent most, if not all, of their childhood in the host
country, where they were brought up and received their education (see
for example Üner, cited above, § 58).
The
relevant criteria to be used in order to assess whether an expulsion
is necessary in a democratic society and proportionate to the
legitimate aim pursued are the following (Boultif v. Switzerland,
no. 54273/00, § 40, ECHR 2001 IX; Üner,
cited above, §§ 57-60):
- 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.
In
the Üner judgment (cited above, § 58), the Court
made further explicit the following two criteria:
- 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.
b) Application of these principles to the instant
case
Turning
to the present case, the Court notes that the Government have not
contested that the expulsion order imposed on the applicant
constituted an interference with his private life. However, they
considered that he could not claim to have had a family life within
the meaning of Article 8 § 1. The Court notes, firstly, that the
applicant was born in Germany, where he had legally resided, attended
school and completed vocational training. It follows that the
applicant's expulsion has to be considered as an interference with
his right to respect for his private life guaranteed in paragraph 1
of Article 8.
The question whether the applicant also enjoyed family
life within the meaning of Article 8 has to be determined with regard
to the position at the time the exclusion order became final (see El
Boujaïdi v. France, judgment of 26 September 1997, Reports
of Judgments and Decisions 1997 VI, p. 1990, § 33;
Yildiz v. Austria, no. 37295/97, §§ 34 and
44, 31 October 2002; Yilmaz v. Germany, no. 52853/99,
§§ 37 and 45, 17 April 2003; and, implicitly Üner,
cited above, § 64). The question as to when the expulsion order
became final has to be determined by applying the domestic law.
According to the domestic law, the complaint to the Federal
Constitutional Court is devised as an extraordinary remedy which does
not prevent the contested decision from becoming final. It follows
that the expulsion order became final on 7 March 2001 when the
Baden-Württemberg Administrative Court of Appeal refused to
grant the applicant leave to appeal. The Court's task is thus to
state whether or not the domestic authorities had complied with their
obligation to respect the applicant's private and family life at that
particular moment, leaving aside circumstances which only came into
being after the authorities took their decision (see Yildiz,
cited above, § 44). At that time, the applicant had not yet
founded a family of his own, as he married in May 2002 and his child
was born subsequently.
With regard to the applicant's relation to his family of origin, the
Court notes that the applicant had been born in Germany, where he
lived with his parents and sister until his arrest in January 1999.
During his prison term, he kept in touch with his family, at least by
writing letters to his mother. He further asserted that he played a
special role in the family following the tragic death of his brother.
Under these circumstances, the Court finds that the applicant's
expulsion interfered to a certain degree also with his right to
respect for his family life.
Such interference constitutes a violation of Article 8
unless it is “in accordance with the law”, pursues an aim
or aims that are legitimate under paragraph 2 of Article 8 and
can be regarded as “necessary in a democratic society”.
The applicant has not contested that his expulsion was
in accordance with the relevant provisions of the Aliens Law and that
it pursued a legitimate aim within the meaning of paragraph 2 of
Article 8, namely the maintenance of public safety and the prevention
of crime.
Accordingly, the Court's task consists in ascertaining
whether the applicant's expulsion struck a fair balance between the
relevant interests, namely the applicant's right to respect for his
private and family life, on the one hand, and the maintenance of
public safety and the prevention of crime, on the other, by applying
the criteria set out above (see paragraphs 54 and 55), insofar as
relevant.
With
regard to the nature and gravity of the offences committed by the
applicant, the Court notes that these were very serious, including
two attempts of aggravated trafficking in human beings, of
procuration and of several counts of battery. The domestic courts put
special emphasis on the exceptional brutality with which the
applicant had abused his victims, one of which having been his former
partner. They further found that the applicant's offences
demonstrated that he had not been willing to respect the rights and
dignity of his fellow human beings. Insofar as the applicant, in his
written submissions before the Court, attempted to shift
responsibility for the jointly committed offences towards the
co-defendant, the Court notes that the District Court, in its
judgment, had identified the applicant himself as the driving force
behind the actions. Although the applicant was twenty years of age
when committing those criminal offences and did not have a previous
criminal record, their nature and gravity exclude the possibility to
regard them as mere examples of juvenile delinquency. Accordingly,
the District Court did not find any reason to apply juvenile law to
the applicant's deeds. The relatively moderate prison sentence of
three years and four months was, according to the District Court,
only owed to the fact that the applicant had confessed his crimes
during the main hearing.
As
to the applicant's conduct since the offences were committed, the
Court observes that the time between his conviction and his
deportation was spent in detention. While the applicant alleges that,
during his detention, he had come to terms with the reasons why he
had committed the offences and therefore did not pose a risk to
public safety, he did not further substantiate by which means he had
achieved that aim.
With regard to the applicant's personal ties to
Germany, the Court considers at the outset that the applicant was
born and spent all his life in Germany, where his
parents had lawfully resided for thirty years and where he
held a permanent residence status. In these circumstances, the Court
does not doubt that the applicant had strong ties with Germany. That
said, it cannot overlook the fact that the applicant, in spite of
having completed his vocational training as a car-mechanic, had not
integrated into the labour market, but lived for a certain period of
time from the earnings he had forcefully extorted from his former
partner. The Court further notes that the applicant did not, at any
time prior to his criminal conviction, apply for naturalisation.
According to the applicant, such request would not have had any
prospect of success, as he had not been able to earn his upkeep. The
Court notes, however, that section 85 of the Aliens Act as in force
until 31 December 1999, which regulated the naturalisation of
young adults, did not require that the respective person should be
able to earn his or her upkeep. The Court is therefore not convinced
that a request for naturalisation would have lacked prospect of
success.
65. With regard to the applicant's ties with
Turkey, the Court notes that he had visited this country only
occasionally on holidays. He has, however, worked there for at least
three weeks in July 1998. The Court further notes that the applicant,
during his detention, wrote letters to his mother using the Turkish
language. Even if it should be true that the applicant did not write
these letter with his own hands, but dictated them to a cell-mate,
this is an indication that the use of the Turkish language was not
uncommon in the applicant's family of origin.
66. With regard to the applicant's relation
to his family of origin, the Court notes that the applicant has lived
with his parents and sister until his arrest in January 1999. The
Court accepts that his parents, having lost one son in a tragic
accident, suffered considerably from the separation from their second
son, in spite of the presence of their daughter. It has, however, not
been established that the parents should not have been able to
maintain the relationship by visiting their son in Turkey.
As the Court has to determine the proportionality of
the domestic decisions in the light of the position when the
expulsion order became final in March 2001 (see, mutatis mutandis,
El Boujaïdi, cited above, § 33, and the further references
in paragraph 57, above), the applicant cannot plead his relationship
with his German wife, whom he married only after deportation to
Turkey, and to their subsequently born child.
As
to the proportionality of the impugned measure, the Court finally
notes that the expulsion order issued against the applicant was not,
from the outset, subject to a time-limit. In this context, the Court
observes that in a number of cases it found a residence prohibition
disproportionate on account of its unlimited duration (see, for
instance, Ezzouhdi v. France, no. 47160/99, § 35,
13 February 2001; Yilmaz, cited above, §§
48-49, 17 April 2003; Radovanovic v. Austria, no.
42703/98, § 37, 22 April 2004; and Keles v. Germany, no.
32231/02, § 66, 27 October 2005) while, in other cases, it has
considered the limited duration of a residence prohibition as a
factor speaking in favour of its proportionality (see Benhebba v.
France, no. 53441/99, § 37; Jankov v.
Germany (dec.), no. 35112/92, 13 January 2000; and Üner,
cited above, § 65).
Turning to the present case, the Court notes that domestic law
provided that the exclusion from German territory could, as a rule,
be limited in time upon separate request (see paragraph 33 above).
There is nothing to indicate in the instant case that this
possibility was merely theoretical. The Court further takes note of
the Government's submissions that the applicant has in the meantime
fulfilled the conditions attached to the time-limit and is no longer
barred from entering German territory. Thus, it cannot be said that
the applicant in this specific case was left without any perspective
of returning to Germany.
The
Court appreciates that the expulsion order imposed on the applicant
had a serious impact on his private life and on the relationship with
his parents. However, having regard to all circumstances of the case,
and in particular to the seriousness of the applicant's offences,
which cannot be trivialised as mere examples of juvenile delinquency,
the Court does not consider that the respondent State assigned too
much weight to its own interest when it decided to impose that
measure.
In
the light of the above, the Court finds that a fair balance was
struck in this case in that the applicant's expulsion was
proportionate to the aims pursued and therefore necessary in a
democratic society.
Accordingly,
there has been no violation of Article 8 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of
Article 8 of the Convention.
Done in English, and notified in writing on 28 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Mr Rozakis
is annexed to this judgment.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE ROZAKIS
I
have voted in favour of finding no violation of Article 8 in this
case, following the case-law of the Court, as crystallised in Boultif
v. Switzerland (no. 54273/00, ECHR 2001-IX) and further
elaborated in the Grand Chamber's judgment in Üner v. the
Netherlands ([GC], no. 46410/99, ECHR 2006-...). Still, I would
like to clarify here, through this concurring opinion, my position
concerning the expulsion of second-generation immigrants, a category
of foreigners to which the applicant in the present case belonged.
Recent
developments in the European landscape concerning residence (and
deportation) of aliens indicate a clear trend towards strengthening
their right to reside lawfully in a country, and a corresponding
limitation of the right of States to indiscriminately deport them.
The conclusions of the European Council (EU) in Tampere in October
1999 underscored the need for approximation of national laws
concerning the terms for admission and residence of nationals coming
from countries outside the European Union. The Presidency of the
Council made it clear that aliens who were not citizens of a European
Union member State and resided legally in a European Union country
for a period of time to be determined should be granted a number of
rights which were as close as possible to those enjoyed by European
Union citizens. At the European Council meeting in Seville in June
2002 the Heads of States and Government of the Union manifested their
willingness to develop a common policy on asylum and immigration, and
underlined their conviction that the integration of immigrants into
the Union's countries entailed, on their part, rights and obligations
dictated by the human rights recognised by the Union. Equally, the
Council of Europe, through recommendations of the Committee of
Ministers (Rec(2000)15 and Rec(2002)4) and the Parliamentary Assembly
(Recommendation 1504 (2001)), has made it clear that long-term
immigrants should not be expelled. Recommendation Rec(2000)15 of the
Committee of Ministers even stated that “[a]fter twenty years
of residence, a long-term immigrant should no longer be expellable”,
while Recommendation 1504 (2001) of the Parliamentary Assembly called
for member States “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” and “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
Court in Üner (cited above, § 55) took into account
the recommendations of the Council of Europe, but at the same time it
noted that “while a number of Contracting States have enacted
legislation or adopted policy rules to the effect that long-term
immigrants who were born in those States or who arrived there during
early childhood cannot be expelled on the basis of their criminal
record, such an absolute right not to be expelled cannot, however, be
derived from Article 8 of the Convention, couched as paragraph 2 of
that provision is, in terms which clearly allow for exceptions to be
made to the general right guaranteed in the first paragraph”.
Üner
represents the latest authority on matters concerning the expulsion
of aliens from States Parties to the Convention. A careful reading of
its paragraph 55, to which I have just referred, shows clearly that
the Court considers that a long-term immigrant who was born in a
State Party has the right not to be expelled from that State,
a right which is part and parcel of the more general right to private
and family life enshrined in Article 8 of the Convention. That right
is, of course, not an absolute one, since like all the other
constitutive components of Article 8, it is subject to the
limitations provided for by its second paragraph. Yet these
limitations are the exceptions, not the rule; and in order for the
exceptions to prevail, and for a State to be allowed to expel, very
serious and exceptional considerations of public interest must exist
in the circumstances of a particular case.
My
interpretation of paragraph 55 of the Üner judgment,
which seems to me to reflect the real spirit of its authors, when
they speak of a right which is not absolute (and yet a right), has
led me, in the circumstances of the present case (as it did in the
factual circumstances of Üner), to vote in favour of
finding no violation. Indeed, in both cases there existed very
weighty reasons justifying expulsion. Although, admittedly, in the
present case of Kaya the applicant was a second-generation
immigrant (a matter which objectively makes expulsion even more
difficult and exceptional), still the nature of the offences
committed – offences which clearly were of an extremely serious
moral and criminal nature – justified, to my mind, the measure
taken against him.
