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GRAND CHAMBER
CASE OF ÜNER v. THE NETHERLANDS
(Application no. 46410/99)
JUDGMENT
STRASBOURG
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,
President,
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:
PROCEDURE
- The case originated in an application (no. 46410/99)
against the Kingdom of the Netherlands lodged with the European
Commission of Human Rights (“the Commission”) under
former Article 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Turkish national, Mr Ziya Üner (“the applicant”), on
4 August 1998.
- The applicant was represented by Mr R. Dhalganjansing,
a lawyer practising in The Hague. The Netherlands Government (“the
Government”) were represented by their Agent, Mrs J. Schukking,
of the Ministry of Foreign Affairs.
- The applicant alleged, in particular, a violation of
Article 8 of the Convention in that he had been excluded from the
Netherlands following a criminal conviction.
- The application was transmitted to the Court on 1
November 1998, when Protocol No. 11 to the Convention came into force
(Article 5 § 2 of Protocol No. 11).
- The application was allocated to the Second Section of
the Court (Rule 52 § 1 of the Rules of Court). In a partial
decision of 26 November 2002 a Chamber of that Section declared
inadmissible the applicant's complaints under Articles 3 and 6 of the
Convention, Articles 2 and 4 of Protocol No. 7 and Article 14 of the
Convention taken in conjunction with Article 4 of Protocol No. 7, and
adjourned its examination of the complaint under Article 8 of the
Convention. By a decision of 1 June 2004 the Chamber declared the
remainder of the application admissible.
- On 1 November 2004 the Court changed the composition of
its Sections (Rule 25 § 1), but this case remained with the
Chamber constituted within the former Second Section.
- On 5 July 2005 a Chamber of that Section, composed of
the following judges: Mr J.-P. Costa, President, Mr A.B. Baka,
Mr L. Loucaides, Mr C. Bîrsan, Mr K. Jungwiert, Mrs
W. Thomassen, Mr M. Ugrekhelidze, and also of Mrs S. Dollé,
Section Registrar, delivered a judgment in which it held by a
majority that there had been no violation of Article 8 of the
Convention. The concurring opinion of the President, Mr Costa, and
the dissenting opinion of Mr Baka were annexed to the judgment.
- In a letter of 4 October 2005 the applicant requested,
in accordance with Article 43 of the Convention and Rule 73, that the
case be referred to the Grand Chamber. A panel of the Grand Chamber
accepted that request on 30 November 2005.
- The composition of the Grand Chamber was determined
according to the provisions of Article 27 §§ 2 and 3 of the
Convention and Rule 24. Mrs Thomassen, the judge elected in
respect of the Netherlands at the time the former Second Section
adopted its judgment in the present case, withdrew from sitting in
the Grand Chamber (Rule 28). The Government subsequently agreed that
Mr E. Myjer, the current judge elected in respect of the Netherlands,
should sit in her place. Mr S.E. Jebens, who was prevented from
sitting in the second deliberations, was replaced by the first
substitute judge, Mr R. Maruste (Rule 24 § 3).
- The Government, but not the applicant, filed a
memorial on the merits. In addition, third-party comments were
received from the German Government, who had been given leave by the
President to intervene in the written procedure (Article 36 § 2
of the Convention and Rule 44 § 2 (a)). The parties were invited
to reply to those comments at the hearing (Rule 44 §
5).
- A hearing took place in public in the Human Rights
Building, Strasbourg, on 5 April 2006 (Rule 59 § 3).
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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1969 and lived
in Turkey until 1981.
- The applicant came to the Netherlands with his mother
and two brothers in 1981, when he was twelve years old, in order to
join his father who had already been living there for ten years. He
was granted a residence permit (vergunning tot verblijf) which
he was required to renew at one yearly intervals until 1988, when he
obtained a permanent residence permit (vestigingsvergunning).
- On 18 January 1989 the applicant was convicted by the
single-judge chamber of the Almelo Regional Court
(arrondissementsrechtbank) of the offence of breach of the
peace (lokaalvredebreuk), and fined 200 Netherlands
guilders (NLG – 90 euros (EUR)). The same court convicted him
on 30 May 1990 of a violent offence against the person, committed in
public (openlijke geweldpleging), and sentenced him to a fine
of NLG 350 (EUR 159) and a suspended term of imprisonment of two
weeks.
- In 1991 the applicant entered into a relationship with
a Netherlands national. They started living together in or around
June 1991. A son was born to the couple on 4 February 1992.
- On 30 June 1992 the applicant was convicted by the
Arnhem Court of Appeal (gerechtshof) of a violent offence
against the person, committed in public, and sentenced to eighty
hours of community service (in lieu of six months' imprisonment).
- During the second pregnancy of the applicant's
partner, the relationship began to suffer tensions. In order to
alleviate the situation, the applicant moved out in November 1992,
but remained in close contact with both his partner and his son. The
pregnancy ended in a miscarriage.
- On 16 May 1993 the applicant was involved in a dispute
in a cafe. He pulled a loaded gun and shot a man, wounding him in the
leg. Outside the cafe he then got into a fight with a friend of the
injured man. He pulled a second loaded gun and shot him in the head.
The man died. The applicant was convicted of manslaughter (doodslag)
and assault (zware mishandeling) by the Arnhem Court of Appeal
on 21 January 1994 and sentenced to seven years' imprisonment.
- Whilst serving his prison sentence, from 17 May 1993
until 14 January 1998, the applicant took courses in computer
skills, administration and accounting, and also obtained a retailer's
certificate (middenstandsdiploma). He took further courses in
order to qualify as a sports instructor. His partner and son visited
him in prison at least once a week and regularly more often. A second
son was born to the applicant and his partner on 26 June 1996, whom
he also saw every week. Both his children have Netherlands
nationality and have been recognised (erkend) by the
applicant. Neither his partner nor his children speak Turkish.
- By a decision of 30 January 1997, the Deputy Minister
of Justice (Staatssecretaris van Justitie) withdrew the
applicant's permanent residence permit and imposed a ten-year
exclusion order (ongewenstverklaring) on him in view of his
conviction of 21 January 1994 and seven-year prison sentence. The
Deputy Minister considered that the general interest in ensuring
public safety and the prevention of disorder and crime outweighed the
applicant's interest in being able to continue his family life with
his partner, children, parents and brothers in the Netherlands.
- The applicant lodged an objection (bezwaarschrift)
against this decision, arguing that the offence in question had been
committed long before, in May 1993, that he had not reoffended, that
there was no indication that he would reoffend, and that his partner
and children could not be expected to follow him to Turkey. Following
a hearing before the Advisory Board on Matters Concerning Aliens
(Adviescommissie voor vreemdelingenzaken) on 1 July 1997, at
which the applicant was assisted by an interpreter, the Deputy
Minister rejected the objection on 4 September 1997 and ordered the
applicant to leave the Netherlands as soon as he was released from
prison.
- The applicant appealed to the Regional Court of The
Hague, sitting in Zwolle, submitting that, as there was no risk of
his reoffending, there was no necessity to impose an exclusion order
on him and that to do so amounted to the imposition of a second
penalty.
- The applicant was released from prison on 14 January
1998 and subsequently placed in aliens' detention
(vreemdelingenbewaring) pending his deportation.
- Following a hearing on 28 January 1998, the Regional
Court rejected the applicant's appeal on 4 February 1998. The
Regional Court did not accept the applicant's argument that the
period of time that had elapsed between the date on which his
criminal conviction had become irrevocable and the date on which the
exclusion order had been imposed was so long that the Deputy Minister
should be deemed to have acquiesced in the applicant's continued
residence in the Netherlands. Furthermore, it did not discern any
facts or circumstances capable of justifying a reduction of the
period during which the applicant would be excluded from Netherlands
territory. The applicant's claim that there was no risk of his
reoffending was based solely on his own statements and was not
supported by the facts, given that he had also been convicted of
violent offences in 1990 and 1992. In addition, it did not appear
that the applicant had put down roots in the Netherlands or become
dissociated from Turkish society to such a degree that he would be
unable to return to his country of origin. Finally, the Regional
Court considered that the interference with the applicant's family
life was justified for the purposes of preventing disorder and crime.
- The applicant was deported to Turkey on 11 February
1998. However, it appears that he returned to the Netherlands soon
afterwards, as he was apprehended there on 29 May 1998. He was again
deported to Turkey on 4 June 1998, and a request for a provisional
stay of execution of the deportation order, which he had lodged with
the Regional Court of The Hague, was declared inadmissible on 24
August 1998. He was also convicted of the offence of residing
illegally in the Netherlands while subject to an exclusion order
(section 197 of the Criminal Code (Wetboek van Strafrecht))
and sentenced to three months' imprisonment.
- On 17 September 1998 the applicant requested that the
exclusion order be revoked. The Deputy Minister of Justice refused
the request on 26 October 1998 and on 13 April 2000 dismissed an
objection which the applicant had filed against that refusal. The
applicant subsequently lodged an appeal, which was declared
inadmissible by the Regional Court of The Hague, sitting in Zwolle,
on 2 August 2000. No appeal lay against that decision.
- The applicant submitted that, prior to his deportation
in 1998, he had only been back to Turkey once in order to attend the
funeral of his grandmother, and that he did not speak the Turkish
language apart from understanding certain expressions. His only
relative in Turkey was an uncle with whom he had no contact.
- According to a report drawn up by a psychiatrist in
Turkey on 9 June 1998, the applicant was suffering from
psychological problems as a result of being separated from his
family. In particular, not being able to see his children was making
him depressed. Treatment had begun in March 1998 and was continuing,
though some improvement had been noted.
- On 29 March 2006 the applicant was discovered working
at an illegal cannabis plantation in the Netherlands. He was arrested
and subsequently placed in aliens' detention. This detention was
discontinued on 1 May 2006 in order to execute the judgment whereby
the applicant had been sentenced to three months' imprisonment (see
paragraph 25 above). On 16 May 2006 the applicant was deported to
Turkey.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Netherlands law with regard to aliens
- At the relevant time the decision to withdraw the
applicant's residence permit and to impose an exclusion order on him
was taken under sections 14 and 21 of the Aliens Act 1965
(Vreemdelingenwet 1965) and in accordance with the policy laid
down in Chapters A4 and A5 of the “Aliens Act Implementation
Guidelines 1994” (Vreemdelingencirculaire – a body
of directives drawn up and published by the Ministry of Justice).
Underlying this policy is the principle that the longer an alien has
lawfully resided in the Netherlands – and the stronger,
therefore, his or her ties with the Netherlands are assumed to be –
the more serious an offence must be before it can justify withdrawing
a residence permit and excluding the alien from Netherlands
territory; the authorities thus apply a sliding scale (glijdende
schaal).
- In accordance with this policy, a residence permit may
be withdrawn and an exclusion order imposed on an alien who, at the
time of committing the offence, has been lawfully residing in the
Netherlands for more than ten but less than fifteen years –
like the applicant in the present case – if he or she is
sentenced to an unsuspended prison sentence of more than sixty months
following a conviction for a serious, violent crime or for
drug trafficking.
- If an exclusion order is imposed on the basis of a
conviction for a serious, violent crime or drug-trafficking, this
order will in any event be revoked, upon request, if the alien has
been residing outside the Netherlands for a period of ten years and
if he has not been convicted of further criminal offences (Chapter
A5/6.4 of the “Aliens Act Implementation Guidelines 1994”).
- A person upon whom an exclusion order has been imposed
is not allowed either to reside in or to visit the Netherlands.
B. Netherlands criminal law
- Section 15 paragraph 2 of the Criminal Code reads:
“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
- With regard to the various texts adopted by the
Council of Europe in the field of immigration, mention should be made
of the Committee of Ministers Recommendations Rec(2000)15 concerning
the security of residence of long-term migrants and Rec(2002)4 on the
legal status of persons admitted for family reunification, and of
Parliamentary Assembly Recommendation 1504 (2001) on the
non-expulsion of long-term immigrants.
- Recommendation Rec(2000)15 states, inter alia:
“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.”
- In Recommendation 1504 (2001) the Parliamentary
Assembly recommended that the Committee of Ministers invite the
Governments of Member States, inter alia:
“11. ii.
...
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.
- Under the heading “Effective protection against
expulsion of family members”, the Committee of Ministers
recommended to Governments in Recommendation Rec(2002)4 that, where
the withdrawal of or refusal to renew a residence permit, or the
expulsion of a family member, is being considered:
“...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
- In the majority of the member States of the Council of
Europe, second-generation immigrants may be deported by the
authorities on the ground that they have been convicted of a criminal
offence. Eight member States have provided in their laws that
second-generation immigrants cannot be deported on the basis of their
criminal record or activities: Austria, Belgium, France, Hungary,
Iceland, Norway, Portugal and Sweden. Apart from Iceland and Norway,
this protection is not confined to those who were actually born in
the host country but also applies to foreigners who arrived during
childhood (varying from before the age of three in Austria to before
the age of fifteen in Sweden).
THE LAW
I. PRELIMINARY ISSUE: SCOPE OF THE GRAND CHAMBER'S
JURISDICTION
- In his request for referral of the case to the Grand
Chamber, the applicant argued that the present case disclosed a
violation not only of Article 8 of the Convention but also of Article
6, in that the Dutch authorities had waited an unduly long period of
time following his conviction before deciding that his residence
permit should be withdrawn and that an exclusion order was to be
imposed on him. He had perceived those measures as a second
punishment. He further submitted that it would not have been possible
to expel him had he been a Dutch national.
- The Court observes that under its case-law, the “case”
referred to the Grand Chamber is the application as it
has been declared admissible (see K. and T. v. Finland
[GC], no. 25702/94, § 141, ECHR 2001-VII, Leyla Şahin
v. Turkey [GC], no. 44774/98, § 128, ECHR 2005 XI). It
notes that in its partial decision of 26 November 2002, the Chamber
declared inadmissible those of the applicant's complaints which did
not relate to Article 8 of the Convention (see paragraph 5 above),
including complaints under Article 6 of the Convention and Article 4
of Protocol No. 7, taken both on its own and in conjunction with
Article 14 of the Convention. As a result of that decision,
therefore, the complaint under Article 6 of the Convention and those
under Article 4 of Protocol No. 7 and Article 14 of the Convention –
if it is to be assumed that the applicant indeed intended once more
to rely on the latter provisions in the present proceedings –
are not within the scope of the case before the Grand Chamber.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- Article 8 of the Convention, in so far as relevant,
provides:
“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
- Applying the guiding principles set out in the Court's
judgment in the case of Boultif v. Switzerland (no. 54273/00,
§ 48, ECHR 2001-IX), the Chamber, in its judgment of 5 July
2005, concluded that in the circumstances of the present case the
respondent State could not be said to have failed to strike a fair
balance between the applicant's interests on the one hand and its own
interest in preventing disorder or crime on the other. It accordingly
found that there had been no violation of Article 8 of the
Convention.
B. The parties' submissions before the Grand Chamber
1. The applicant
- As he had done before the Chamber, the applicant
argued that the respondent Government had failed to strike a fair
balance in the present case. When he had committed the offence which
ultimately led to the impugned measures, he had still been very
young; being confronted with violent people he had acted in
self-defence. He had subsequently turned over a new leaf, leading,
inter alia, to his being granted early release from
prison, which indicated that he was no longer regarded as posing a
danger to society. The applicant would in any event have preferred to
serve a longer sentence if it had meant avoiding deportation and
being able to resume his family life in the Netherlands. While the
applicant was in detention, his children had been able to visit him
regularly and to develop a normal family relationship with him.
According to the applicant, following his expulsion his partner and
children had visited him on a number of occasions during the summer
holidays. Each time they had returned to the Netherlands he had sunk
deeper into depression.
- By focusing solely on the applicant's responsibility
for the consequences of his actions, the State had disregarded the
interests of his Dutch partner and his Dutch children. The strength
of the relationship with his partner was illustrated by the fact that
they had decided to try for a second child while the applicant was
still in detention. He would not have taken that decision had he
known that he would be refused continued residence in the
Netherlands. But the Dutch authorities had waited more than three
years after the criminal conviction before deciding to impose an
additional penalty on him by withdrawing his residence permit and
making him the subject of an exclusion order.
- It was only because he did not have Dutch nationality
that the authorities had been able to impose the impugned measures on
him. However, having left Turkey at the age of twelve, he had spent
more of his life in the Netherlands, where he had a very strong
entitlement to residence and into whose society he had integrated to
such an extent that he did not think of himself as a foreigner. By
contrast, in Turkey he felt like a stranger. Even though the
exclusion order was nominally limited in time, it was unlikely that
he would ever be able to return to live in the Netherlands, given
that new legislation had in the meantime been adopted under the terms
of which his criminal conviction could be held against him in an
application for a residence permit.
- Having been informed that he could attend the hearing
before the Grand Chamber, the applicant had been unable to resist the
temptation to travel to the Netherlands first in order to see his
children. He had accepted the offer of a friend to work in the
latter's cannabis plantation in order to finance his travels and stay
in the Netherlands. No criminal proceedings had been instituted
against him but he nevertheless realised that he had committed a
mistake capable of prejudicing his chances of living with his family
in the Netherlands.
2. The Government
- The Government submitted that no support could be
found, either in the Convention or in the Court's case-law, for the
idea that the expulsion of aliens belonging to the category of
second-generation or long-term immigrants was always disproportionate
and discriminatory. Such a premise would entirely eliminate the
margin of appreciation enjoyed by the State when assessing individual
immigration cases. The principle of non discrimination did not,
in any event, come into play, as the situation of nationals and
non-nationals was not equal.
- They further maintained that the imposition of an
exclusion order in the present case had been necessary in a
democratic society as well as proportionate. As the decision to
impose an exclusion order was a discretionary power, it was not
subject to a time-limit, and it was customary for this procedure not
to begin until the person concerned had already been subjected, at
least in part, to the measures imposed in connection with the
criminal conviction. Given that the applicant must be deemed to have
been aware that he risked having an exclusion order imposed on him
under the applicable legislation, his family-planning choices were
entirely his own responsibility.
- The Netherlands authorities had decided to withdraw
the applicant's residence permit and to impose an exclusion order on
him after applying the “sliding scale principle”, which
took into account the length of his stay in the Netherlands. Even
though this may not have been stated explicitly in the text of the
decisions at issue, the authorities, as they always did in cases of
this nature, had subsequently applied a “full” Article 8
test, involving an assessment of the guiding principles set out by
the Court in its judgment in the case of Boultif v. Switzerland
(cited above). Account had thus been taken of the very serious nature
of the crime committed by the applicant – in respect of which
the trial courts had dismissed his claim of self-defence – and
also of the fact that it was not his first offence. The fact that the
applicant had obtained early release was not of relevance in this
context. Early release was virtually automatic and unconditional in
the Netherlands, whereas an exclusion order could be imposed on the
basis of the person's previous conduct – the serious criminal
offence – even if he or she did not pose an actual and
immediate threat.
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.
- Finally, the exclusion order was not of a permanent
nature and would be lifted after ten years at the applicant's
request, provided he had not been convicted of further criminal
offences and had resided outside the Netherlands for ten years. The
applicant would then be able to gain re admission to the
Netherlands if he complied with the relevant requirements, namely
having sufficient means of existence (120% of the monthly minimum
wage) and being able to prove the effectiveness of his family life in
the Netherlands.
3. Third party
- In their comments submitted under Article 36 § 2
of the Convention and Rule 44 § 2 (a) of the Rules of Court the
intervening party, the Government of Germany (see paragraph 10
above), pointed out in the first place that the possibility for a
State to expel individual aliens – on whom the Convention did
not confer a right not to be expelled – was a necessary means
by which a State could effectively fulfil its core tasks, namely
maintaining and guaranteeing public safety and the protection of its
nationals and other aliens residing on its territory. The fact that
an alien had been living on the State's territory for a long time,
had perhaps even been born there, and had started a family there did
not put him or her on a par with the State's nationals in terms of
rights of residence.
- The German Government were further of the view that
Article 8 of the Convention did not contain a general requirement
that exclusion orders be limited in time. It was for the State to
decide when and whether to exclude a foreign national from its
territory for ever or for a specific period, so long as it abided by
the principles of the rule of law and human rights. Moreover, an
expulsion ordered in administrative proceedings following a criminal
conviction did not constitute a double punishment, either for the
purposes of Article 4 of Protocol No. 7 or “in the humane sense
of the term”. Whereas the primary aim of a criminal penalty was
to punish a previous criminal wrong, an expulsion order was aimed at
guaranteeing public safety in the future without the intention of
inflicting a punishment.
D. The Court's assessment
1. General principles
- The Court reaffirms at the outset that a State is
entitled, as a matter of international law and subject to its treaty
obligations, to control the entry of aliens into its territory and
their residence there (see, among many other authorities, Abdulaziz,
Cabales and Balkandali v. the United Kingdom, judgment of 28 May
1985, Series A no. 94, p. 34, § 67, Boujlifa v. France,
judgment of 21 October 1997, Reports of Judgments and Decisions
1997 VI, p. 2264, § 42). The Convention does not guarantee
the right of an alien to enter or to reside in a particular country
and, 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 Dalia v. France, judgment of 19 February 1998, Reports
1998-I, p. 91, § 52; Mehemi v. France, judgment
of 26 September 1997, Reports 1997-VI, p. 1971, § 34;
Boultif v. Switzerland, cited above, § 46; and Slivenko
v. Latvia [GC], no. 48321/99, ECHR 2003-X, §
113).
- The Court considers that these principles apply
regardless of whether an alien entered the host country as an adult
or at a very young age, or was perhaps even born there. In this
context the Court refers to Recommendation 1504 (2001) on the
non expulsion of long-term immigrants, in which the
Parliamentary Assembly of the Council of Europe recommended that the
Committee of Ministers invite member States, inter alia, to
guarantee that long-term migrants who were born or raised in the host
country cannot be expelled under any circumstances (see
paragraph 37 above). 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 (see paragraph 39 above), 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 rights
guaranteed in the first paragraph.
- The aforementioned Parliamentary Assembly
Recommendation also advocates that long-term immigrants, with the
exception of the category referred to in paragraph 55 above, who have
committed a criminal offence should be subjected to the same
ordinary-law procedures and penalties as are applied to nationals and
that the “sanction” of expulsion should be applied only
to particularly serious offences affecting state security of which
they have been found guilty (see paragraph 37 above). The Court
considers nevertheless that, even if a non-national holds a very
strong residence status and has attained a high degree of
integration, his or her position cannot be equated with that of a
national when it comes to the above-mentioned power of the
Contracting States to expel aliens (see Moustaquim v. Belgium,
judgment of 18 May 1991, Series A no. 193, p. 20, § 49) for one
or more of the reasons set out in paragraph 2 of Article 8 of the
Convention. It is, moreover, of the view that a decision to revoke a
residence permit and/or to impose an exclusion order on a settled
migrant following a criminal conviction in respect of which that
migrant has been sentenced to a criminal-law penalty does not
constitute a double punishment, either for the purposes of Article 4
of Protocol No. 7 or more generally. Contracting States are entitled
to take measures in relation to persons who have been convicted of
criminal offences in order to protect society – provided, of
course that, to the extent that those measures interfere with the
rights guaranteed by Article 8 paragraph 1 of the Convention, they
are necessary in a democratic society and proportionate to the aim
pursued. Such administrative measures are to be seen as preventive
rather than punitive in nature (see Maaouia v. France, cited
above, § 39).
- Even if Article 8 of the Convention does not therefore
contain an absolute right for any category of alien not to be
expelled, the Court's case law amply demonstrates that there are
circumstances where the expulsion of an alien will give rise to a
violation of that provision (see, for example, the judgments
in Moustaquim v. Belgium, Beldjoudi v. France and
Boultif v. Switzerland, cited above; see also Amrollahi v.
Denmark, no. 56811/00, 11 July 2002; Yılmaz v.
Germany, no. 52853/99, 17 April 2003; and Keles v. Germany,
32231/02, 27 October 2005). In the case of Boultif the Court
elaborated the relevant criteria which it would use in order
to assess whether an expulsion measure was necessary in a democratic
society and proportionate to the legitimate aim pursued. These
criteria, as reproduced in paragraph 40 of the Chamber judgment in
the present case, are the following:
- 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 Court would wish to make explicit two criteria
which may already be implicit in those identified in the Boultif
judgment:
- 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.
- The Court considered itself called upon to establish
“guiding principles” in the Boultif case because
it had “only a limited number of decided cases where the main
obstacle to expulsion was that it would entail difficulties for the
spouses to stay together and, in particular, for one of them and/or
the children to live in the other's country of origin” (op.
cit., § 48). It is to be noted, however, that the
first three guiding principles do not, as such, relate to family
life. This leads the Court to consider whether the “Boultif
criteria” are sufficiently comprehensive to render them
suitable for application in all cases concerning the expulsion and/or
exclusion of settled migrants following a criminal conviction. It
observes in this context that not all such migrants, no matter how
long they have been residing in the country from which they are to be
expelled, necessarily enjoy “family life” there within
the meaning of Article 8. However, as Article 8 also protects the
right to establish and develop relationships with other human beings
and the outside world (see Pretty v. the United Kingdom, no.
2346/02, § 61, ECHR 2002-III) and can sometimes embrace aspects
of an individual's social identity (see Mikulić v. Croatia,
no. 53176/99, § 53, ECHR 2002-I), it must be accepted that the
totality of social ties between settled migrants and the community in
which they are living constitute part of the concept of “private
life” within the meaning of Article 8. Regardless of the
existence or otherwise of a “family life”, therefore, the
Court considers that the expulsion of a settled migrant constitutes
interference with his or her right to respect for private life. It
will depend on the circumstances of the particular case whether it is
appropriate for the Court to focus on the “family life”
rather than the “private life” aspect.
- In the light of the foregoing, the Court concludes
that all the above factors (see paragraphs 57-59) should be taken
into account in all cases concerning settled migrants who are to be
expelled and/or excluded following a criminal conviction.
2. Application of the above principles in the instant
case
- The Court has no difficulty in accepting that the
impugned measures constituted interference with the applicant's right
to respect for his family life, that that interference was in
accordance with the law and that it pursued the legitimate aims of
the interest of public safety and the prevention of disorder or
crime. It follows from paragraph 59 above that these measures also
amounted to interference with the applicant's right to respect for
his private life. Even so, having regard to the particular issues at
stake in the present case and the positions taken by the parties, the
Court will pay specific attention to the applicant's right to
respect for his family life.
- The Court considers at the outset that the applicant
lived for a considerable length of time in the Netherlands, the
country that he moved to at the age of twelve together with his
mother and brothers in order to join his father, and where he held a
permanent residence status. Moreover, he subsequently went on to
found a family there. In these circumstances, the Court does not
doubt that the applicant had strong ties with the Netherlands. That
said, it cannot overlook the fact that the applicant lived with his
partner and first-born son for a relatively short period only, that
he saw fit to put an end to the co-habitation, and that he never
lived together with his second son. As the Chamber put it in
paragraph 46 of its judgment, “... the disruption of their
family life would not have the same impact as it would have had if
they had been living together as a family for a much longer time.”
Moreover, while it is true that the applicant came to the Netherlands
at a relatively young age, the Court is not prepared to accept that
he had spent so little time in Turkey that, at the time he was
returned to that country, he no longer had any social or cultural
(including linguistic) ties with Turkish society.
- As to the criminal conviction which led to the
impugned measures, the Court is of the view that the offences of
manslaughter and assault committed by the applicant were of a very
serious nature. While the applicant claimed that he had acted in
self-defence – a claim that was in any event rejected by the
trial courts – (see paragraphs 44 and 50 above), the fact
remained that he had two loaded guns on his person. Taking his
previous convictions into account (see paragraphs 14 and 16 above),
the Court finds that the applicant may be said to have displayed
criminal propensities. Having regard to Dutch law and practice
relating to early release (see paragraph 34 above), the Court is,
furthermore, not inclined to attach particular weight to the
fact that the applicant was released after having served two-thirds
of his sentence.
- The Court concurs with the Chamber in its finding that
at the time the exclusion order became final, the applicant's
children were still very young – six and one and a half years
old respectively – and thus of an adaptable age (see paragraph
46 of the Chamber judgment). Given that they have Dutch nationality,
they would – if they followed their father to Turkey – be
able to return to the Netherlands regularly to visit other family
members residing there.
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).
- The Court appreciates that the exclusion order imposed
on the applicant has even more far-reaching consequences than the
withdrawal of his permanent residence permit, as it renders even
short visits to the Netherlands impossible for as long as the order
is in place. However, having regard to the nature and the seriousness
of the offences committed by the applicant, and bearing in mind that
the exclusion order is limited to ten years, the Court cannot find
that the respondent State assigned too much weight to its own
interests when it decided to impose that measure. In this context,
the Court notes that the applicant, provided he complied with a
number of requirements, would be able to return to the Netherlands
once the exclusion order had been lifted (see paragraphs 32
and 51 above).
- Finally, the Court notes that the applicant also
complained of the fact that after his conviction a period of three
years elapsed before the authorities decided to withdraw his
residence permit and impose an exclusion order. The Government have
explained this delay with reference to domestic law and practice in
this area. The Court considers that it does not have to take a stance
on this issue, but notes that the applicant was still serving his
sentence when the impugned measures were taken (cf. Sezen v. the
Netherlands, no. 50252/99, §§ 44 and 48, 31 January
2006). Moreover, in adopting the latter measures, the authorities
addressed all relevant considerations militating for or against the
denial of residence and use of an exclusion order.
- In the light of the above, the Court finds that a fair
balance was struck in this case in that the applicant's expulsion and
exclusion from the Netherlands were 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
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.
Luzius Wildhaber
President
T.L. Early
Section
Registrar
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.
L.W.
T.L.E.
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
(Translation)
. 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 ago.
- All those judgments, both before and after the entry
into force of Protocol No. 11, were delivered by the Chambers of the
Court. The latter, moreover, were often divided, with dissenting
opinions on both sides of the argument, quite impassioned in some
cases. The Grand Chamber, however, has not had an opportunity since
Berrehab to consider the issue. In Maaouia,
for instance, it was called upon to rule not on Article 8, but on
Article 6 § 1 alone, which, incidentally, it held by fifteen
votes to two to be inapplicable.
- In the present case the Grand Chamber, breaking new
ground, had to determine whether the order excluding a Turkish
national from Netherlands territory following a criminal conviction
was in breach of Article 8. We might note in passing that this
application was perhaps not the most typical candidate for referral
following the Chamber judgment. However, in its wisdom, the panel of
five judges provided for by Article 43 of the Convention accepted the
applicant's request for referral. This implies that the question was
a serious one within the meaning of Article 43 and that the present
judgment will, or should, establish a precedent.
- We respectfully disagree with the findings of the
majority of our colleagues, who held that there had been no violation
of Article 8.
- First of all, in general terms, we believe that
foreign nationals – in any case those who, like Mr Üner,
have been residing legally in a country – should be granted the
same fair treatment and a legal status as close as possible to that
accorded to nationals. This objective has been set forth and
reiterated in numerous instruments at European level within both the
European Union and the Council of Europe, and to some extent at
global level.
- Hence, the conclusions of the Presidency of the
Tampere European Council on 15 and 16 October 1999 stressed the need
for approximation of national legislation on the conditions for
admission and residence of third country nationals; the
Presidency added that a third-country national who had resided
legally in a European Union Member State for a period of
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.
- The Council of Europe has also had its say. What is
more, paragraphs 36 to 38 of the judgment cite Committee of Ministers
Recommendation Rec(2000)15, Parliamentary Assembly Recommendation
1504 (2001) and Committee of Ministers Recommendation Rec(2002)4. One
has only to read the judgment to realise that these instruments –
which admittedly are not binding – emphasise, among other
things, the need to protect long-term immigrants against expulsion,
to restrict the penalty of expulsion to particularly serious
offences affecting State security and to give particular
consideration to the interests and well-being of children.
- At the global level, need we recall the 1989 United
Nations Convention on the Rights of the Child (to which the
Netherlands is a party), which articulates the principle of the “best
interests of the child” (a principle which can, as in the
present case, have a bearing on family life)?
- Of course, we are not arguing that all these
international instruments – which, moreover, do not all have
the same legal force – mean that foreign nationals can never be
expelled, as is the case with nationals under Article 3 of Protocol
No. 4. That would be ridiculous. But we do believe that Article 8
of the Convention must be construed in the light of these texts. In
our view, the judgment does not quite do that, as it does not, we
believe, draw the correct inferences from the international
instruments which it cites.
- Let us now turn from the general to the specific facts
of this case. The applicant is not a second-generation immigrant;
however, he was only twelve years old when he arrived in the
Netherlands in 1981 to join his father, who had already been living
there for ten years. The applicant arrived with his mother and his
two brothers; it was therefore a case of family reunion. After being
issued with a series of one-year renewable residence permits he
obtained a permanent residence permit at the age of 19. Finally, as
far back as 1991 – when he was 22 – he started a family
in the host country, with a Netherlands national with whom he has had
two children, born in 1992 and 1996. His partner and their children
all have Netherlands nationality; they have never lived in Turkey,
have no links to that country and do not speak the language.
Moreover, although their family ties have been strained at times,
they have never been severed, not even while the applicant was in
prison.
- From a criminal-law viewpoint, there is no doubt that
the applicant committed serious offences, most notably when, at the
age of 24, he committed manslaughter and assault during a fight in a
cafe, and was sentenced to seven years' imprisonment as a result (see
paragraph 18 of the judgment). He was released in early 1998, having
served four and a half years in prison.
- It was following this criminal conviction that the
authorities imposed further penalties on Mr Üner. In 1997 –
four years after the crime had been committed (it is not clear why
the interval was so long) – his permanent residence permit was
withdrawn and an order was issued prohibiting him from re-entering
the Netherlands for ten years. On that basis, he was deported to
Turkey shortly after his release from prison; he was deported a
second time a few months later, having returned illegally to the
Netherlands.
- In order to assess whether the applicant's right to
respect for his private and family life had been violated, the Court
applied the “Boultif criteria”
and, in fact, extended them (see paragraph 58 of the judgment). Our
own interpretation of the case in the light of these criteria (or
“guiding principles”), however, leads us to the opposite
conclusion to that reached by the majority.
- The nature and seriousness of the offence committed by
the applicant were, as we have said, factors contributing to his
expulsion (despite the fact that the offence was committed during a
fight and did not affect State security, to use the language of the
Parliamentary Assembly recommendation cited in paragraph 37 of the
judgment). On the other hand, the length of the applicant's residence
in the Netherlands (seventeen years prior to his expulsion) militated
in his favour. Furthermore, almost five years had passed since the
applicant had committed the offence, and his conduct in prison does
not appear to have caused any problems. His partner and children, as
mentioned, are Netherlands nationals. The couple's relationship had
begun seven years before he was expelled and the ties were strong (a
stable relationship and two children). It seems clear, too, that the
applicant's partner would have faced considerable difficulties had
she been forced to move with him to a country which was completely
alien to her.
- In short, apart from the seriousness of the offence,
all the “Boultif criteria” seem to us to point to a
violation of Article 8. Paradoxically, even those added by the
judgment in this case (see paragraph 58) tend in the same direction,
whether the criterion is the “interests and well-being of the
children” (whose paternal grandparents, even, had lived in the
Netherlands for a long time), or the “solidity of social,
cultural and family ties”. The latter were clearly stronger
with the host country (the Netherlands) than with the country of
destination (Turkey), which the applicant had left almost twenty
years before and with which his partner and children had no links.
(In this respect, paragraph 64 of the judgment seems to us to be more
than a little contrived, and in any case unconvincing.)
- Hence, the only way in which the finding of a
non-violation can possibly be justified, when the “Boultif
criteria” – especially in their extended form – are
applied, is by lending added weight to the nature and seriousness of
the crime. Quite apart from a problem of method (how do we assign
relative weight to the various factors on the basis of some ten
guiding principles – are we not seeing here the implicit
emergence of a method which gives priority to one criterion, relating
to the offence, and treats the others as secondary or marginal?), we
believe a question of principle to be at stake, on which we should
like to conclude.
- The principle is that of “double punishment”,
or rather the discriminatory punishment imposed on a foreign national
in addition to what would have been imposed on a national for the
same offence. We do not agree with the assertion in paragraph 56 that
the applicant's expulsion was to be seen as preventive rather than
punitive in nature. Whether the decision is taken by means of an
administrative measure, as in this case, or by a criminal court,
it is our view that a measure of this kind, which can shatter a life
or lives – even where, as in this case, it is valid, at least
in theory, for only ten years (quite a long time, incidentally) –
constitutes as severe a penalty as a term of imprisonment, if not
more severe. This is true even where the prison sentence is longer
but is not accompanied by an exclusion order or expulsion. That is
why some States do not have penalties of this kind specific to
foreign nationals, while others have largely abolished them in recent
times (the case of France springs to mind: see the Laws of
26 November 2003 and 24 July 2006).
- For these reasons relating to the Court's reasoning
(the application of the “Boultif criteria” to this case)
and on a point of principle (our mistrust of any more severe penalty
imposed on a foreign national because he or she has the misfortune to
be such), we have been unable to vote with the majority of our
colleagues. We truly regret this. True, the Convention is a living
instrument which must be interpreted in the light of present-day
conditions.
But we would have liked to see this dynamic approach to case law
tending towards increased protection for foreign nationals (even
criminals) rather than towards increased penalties which target them
specifically.
