FIFTH SECTION DECISION

Transcription

1 FIFTH SECTION DECISION Application no /08 Ahmet SAVASCI against Germany The European Court of Human Rights (Fifth Section), sitting on 19 March 2013 as a Committee composed of: Boštjan M. Zupančič, President, Angelika Nußberger, Helena Jäderblom, judges, and Stephen Phillips, Deputy Secion Registrar, Having regard to the above application lodged on 23 September 2008, Having deliberated, decides as follows: THE FACTS 1. The applicant, Mr Ahmet Savasci, is a Turkish national, who lives in Adana. He was represented before the Court by Mr Karl Lehner, a lawyer practising in Nürnberg. The facts of the case, as submitted by the applicant, may be summarised as follows. 1. Personal circumstances 2. The applicant was born in 1957 and moved to Germany in 1978 at the age of He married a German citizen in Subsequently, he received a provisional residence permit (Aufenthaltserlaubnis), which was extended on

2 2 SAVASCI v. GERMANY DECISION several occasions. In 1989 the authorities granted him an unlimited residence permit. 4. The applicant and his wife have 2 children, who were born in 1983 and The children have German nationality and grew up in Germany. 5. The applicant needs permanent medical treatment. He suffers from diabetes mellitus and glaucoma. 2. Criminal proceedings 6. On 3 September 1995 the applicant was arrested on suspicion of having committed an offence under the Narcotic Act (Betäubungsmittelgesetz). On 7 August 1997 the Bayreuth Regional Court convicted him of drug smuggling and trafficking within a criminal organisation (bandenmäßige Einfuhr von Betäubungsmittel; bandenmäßiger Handel mit Betäubungsmitteln) and sentenced him to 9 years and 6 months of imprisonment. According to the findings of the court the applicant was responsible for the smuggling of approximately 72 kilograms of heroin to Germany which he intended to resell. The court noted that the police had secured the heroin which did not find its way into a distribution system. The court found that the applicant was a member of the criminal organisation Adena group. It considered in favour of the applicant that he had no criminal record before, that his family had debts amounting to 300,000 Deutschmarks (153,388 EURO), that he had been encouraged by an undercover agent of the police and that he had confessed to the offence and assisted the courts by unveiling other offenders. The court found on the other hand after taking evidence that the applicant had already participated in the trafficking of 18 kilograms of hashish in 1992, that he had earned his living partly by illegal activities such as smuggling diamond drills (Schmuggel von Diamantbohrern) and that he had committed the offence with considerable criminal energy. 7. On 7 August 1997 the Bayreuth Regional Court convicted the applicant s wife of aiding and abetting (Beihilfe) to 2 years of imprisonment on probation. Pursuant to the findings of the court the applicant s wife had not taken an active part in the offence, but had forwarded messages. 8. On 14 February 2002 the Bayreuth Regional Court released the applicant on probation after 6 years and 6 months of imprisonment. The court heard the applicant, took expert opinion and found that there were sufficient indications for a positive development of the applicant in the future. The court underlined that the applicant had given up his criminal intentions. 9. After his release the applicant did not commit any offences. Together with his spouse he built up a family enterprise.

3 SAVASCI v. GERMANY DECISION 3 3. Expulsion proceedings 10. On 17 March 1999 the Bayreuth District Authority (Landratsamt Bayreuth) informed the applicant of its intention to expel him and invited him to make representations. The applicant submitted in particular that his family was fully integrated in Germany and that an expulsion would be disproportional. 11. On 3 December 1999 the Bayreuth District Authority ordered the applicant s expulsion to Turkey. The applicant s administrative appeal (Widerspruch) was of no avail. 12. On 11 June 2001 the Bayreuth Administrative Court dismissed his appeal. 13. On 21 October 2002 the Bavarian Administrative Court of Appeal dismissed his appeal. It held that the expulsion order had a legal basis in sections 47 1 and 48 1 of the Aliens Act (Ausländergesetz). It referred to the Court s case-law and found that the expulsion order did not violate Article 8 of the Convention. In this context it underlined that the amount of heroin had been sufficient for several million injections and stated that the applicant had strong ties to Turkey and was able to speak Turkish. It considered on the one hand that the applicant had lived in Germany since 1978, that he was married with a German citizen and that he had 2 children in Germany. It found on the other hand that his wife had also been involved in the drug smuggling and had been sentenced by the courts to 2 years of imprisonment on probation. It further found that the applicant was unable to recognise the severity of the offence. This could be concluded from a letter of the applicant to the court in which he blamed other persons for the offence and from an expert opinion pursuant to which the applicant had an ambivalent attidude to the offence. The court found that the applicant was at risk of committing further offences. The court stated that his wife and his children could maintain contact with the applicant by writing, by phone and by visiting him in Turkey. It further underlined that the applicant had the opportunity to file a request to set a time-limit on the effects of his expulsion (zeitliche Befristung) pursuant to section 8 of the Alien Act. It balanced the arguments and came to the conclusion that also when considering the applicant s family situation, the expulsion was not disproportional. 14. On 15 March 2005 the Federal Administrative Court quashed the decision, because issues of the law of the European Union had to be clarified. It underlined that the applicant s expulsion was not contrary to Article 8 of the Convention. 15. On 17 August 2006 the Bavarian Court of Appeal dismissed the applicant s appeal again. Referring to the reasons in its judgment of 2002 it confirmed that the applicant s expulsion was in conformity with domestic law and Article 8 of the Convention.

4 4 SAVASCI v. GERMANY DECISION 16. On 29 June 2007 the Federal Administrative Court dismissed the further appeal on points of law. At the time of this decision both children of the applicant were adults. 17. On 15 April 2008 the Federal Constitutional Court refused to admit the applicant s constitutional complaint without further reasons (2 BvR 1728/07). 18. On 29 May 2008 he was expelled to Turkey. COMPLAINT 19. The applicant complained under Article 8 of the Convention that his deportation to Turkey in 2008 would destroy his relationship with his children and his wife. THE LAW 20. The applicant complained that, as a result of his expulsion, he was unable to exercise his right to family life with his wife and their children. He relied on Article 8 of the Convention which, in so far as relevant, provides: 1. Everyone has the right to respect for his... family life 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... for the prevention of disorder or crime The Court reaffirms 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. 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, insofar 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, Üner v. the Netherlands [GC], no /99, 54, ECHR 2006-XII). 22. The Court notes that the applicant had established a family life in Germany with his wife and their children. It also notes that his children, who grew up in Germany and were adults at the time of the expulsion, could not be expected to move to Turkey. It accepts that there may be difficulties

5 SAVASCI v. GERMANY DECISION 5 for his wife to join him in Turkey. The expulsion therefore interfered with his right to family life. 23. The Court further notes that the expulsion had a basis in domestic law, namely in sections 47 1 and 48 1 of the Aliens Act, and that it served a legitimate aim, namely the prevention of disorder and crime. 24. It has thus to be determined whether the expulsion was necessary in a democratic society, that is to say, if it was justified by a pressing social need and proportionate to the legitimate aim pursued. 25. The Court reiterates the criteria it uses for such an assessment in cases where the main obstacle to expulsion is the difficulty for the spouses to stay together and for a family to live in the country of origin of the person to be expelled (compare Üner, cited above, 57-58): the nature and seriousness of the offence committed by the applicant; the length of the applicant s stay in the country from which he or she is to be expelled; the time elapsed since the offence was committed and the applicant s conduct during that period; the nationalities of the various persons concerned; the applicant s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple s family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; whether there are children of the marriage, and if so, their age; and the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.... the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and the solidity of social, cultural and family ties with the host country and with the country of destination. 26. In applying these criteria to the present case the Court has regard to the fact that the applicant had lived 30 years in Germany when the expulsion order became final (see Maslov v. Austria [GC], no. 1638/03, 61, ECHR 2008). During this considerable length of time the applicant had married and founded a family. It has to be recognised that the applicant s marriage had then lasted 27 years and that the applicant s expulsion resulted in separating him from his family. It has to be noted that his children had reached majority by the time the expulsion order was executed. Although the applicant s relationship with his wife and children was severely limited after his detention, the applicant s ties with Germany nevertheless remained strong during this time (compare Joseph Grant v.

6 6 SAVASCI v. GERMANY DECISION the United Kingdom, no /07, 40, 8 January 2009). The Court also takes note of the 6 years passed between his release from prison and the expulsion. 27. On the other hand, the Court observes that the applicant committed a serious criminal offence he dealt in a considerable amount of heroin, a particularly dangerous drug. The imposed sentence of more than 9 years bears testimony that the committed crime was very severe. The Court has found on several occasions that the states, in principle, have legitimate reasons to combat the distribution of drugs firmly (Maslov, cited above, 80; A.W. Khan v. the United Kingdom, no /06, 40-41, 12 January 2010; C. v. Belgium, 7 August 1996, 35; Reports of Judgments and Decisions 1996-III). 28. The Court further notes that the applicant spent more than a third of his life in Turkey. Neither the language nor the customs were new for the applicant, who grew up and lived in Turkey until the age of 21 (see Antwi and Others v. Norway, no /10, 92, 14 February 2012: arrival at an adult age; see e contrario Butt v. Norway, no /09, 76, 4 December 2012: arrival at the age of 3 and 4). The domestic courts found that he had strong ties to Turkey and was able to speak Turkish (see Üner, cited above, 57 58). Therefore there were no insurmountable obstacles that prevented his reintegration in his country of origin (compare Miah v. United Kingdom, no /07, 25, 27 April 2010). 29. The Court further has regard to the fact that the applicant s spouse was also involved in the offence and that, as the domestic courts found, the applicant s wife and his children could maintain contact with the applicant by for example visiting him in Turkey. 30. Moreover, the Court notes the fact that the expulsion from German territory was not permanent and that the applicant has the opportunity to file a request to set a time-limit on the effects of his expulsion. 31. The Court recognises that the domestic courts reviewed the issues mentioned above in detail and with due consideration to the applicant s family situation. Against the background of the gravity of the drug crime committed by the applicant, and considering the sovereignty of member States to control and regulate the residence of aliens on their territory, the Court accepts that the German courts balanced the applicant s right to respect for his family life reasonably against the State s interest in preventing disorder and crime.

7 SAVASCI v. GERMANY DECISION Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 3 (a) and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Stephen Phillips Deputy Registrar Boštjan M. Zupančič President