Kaya v Germany

JudgeJUDGE ROZAKIS (PRESIDENT),JUDGES LOUCAIDES,STEINER,HAJIYEV,JAEGER,SPIELMANN AND JEBENS,MR S NIELSEN (SECTION REGISTRAR)
Judgment Date28 June 2007

Human rights – Private and family life – Applicant marrying German national and having child – Whether applicant’s expulsion to Turkey on release from prison violating right to respect for private and family life – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.

The applicant, a ‘second-generation’ Turkish immigrant, was born in Germany, where he attended school and completed vocational training. In 1994, he was granted a permanent residence permit. On 8 September 1999, he was convicted of numerous criminal offences, including two counts of attempted aggravated trafficking in human beings, several counts of battery and aggravated battery, purchasing illegal drugs, two counts of drunken driving and two counts of insulting behaviour. He was sentenced to three years and four months’ imprisonment. On 23 November, the regional government ordered his expulsion to Turkey for serious reasons relating to public safety, his deportation to take place on his release from prison. He applied for judicial review of that order, alleging, inter alia, that his deportation might cause his mother to suffer a psychological breakdown, that he only spoke colloquial Turkish and that he had limited writing skills in that language. His application was dismissed and, on 7 March 2001, he was refused leave to appeal. On 5 April 2001, he was deported from prison to Turkey, the remaining part of his sentence being suspended in view of the deportation. In May 2002, he married a German national of Turkish origin who lived in Germany, with whom he subsequently had a child. In July 2004, the period of validity of the exclusion order was limited until 5 October 2006, subject to certain conditions. The applicant complained to the European Court of Human Rights that his expulsion had violated his right to respect for his private and family life contained within art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.

Held – In pursuance of their task of maintaining public order, contracting states had the power to expel an alien convicted of criminal offences. However, their decisions in that field, in so far as they might interfere with a right protected under art 8(1), had to be in accordance with the law and necessary in a democratic society, that was to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. Those principles applied whether an alien entered the host country as an adult or at a very young age, or was even born there. Article 8 did not confer on persons who were born in a member state an absolute right not to be expelled from the territory of that state. Nevertheless, there were circumstances where the expulsion of an alien would give rise to a violation of art 8 and it was evident that regard would be had to the special situation of aliens who had spent most, it not all, of their childhood in the host country. In the circumstances of the instant case, the applicant’s expulsion had to be considered an interference with his right to respect for his private life guaranteed in art 8(1). The question whether he also enjoyed family life within the meaning of art 8 had to be determined with regard to the position at the time the exclusion order had become final, namely 7 March 2001. At that time, the applicant had not yet founded a family of his own, as he married in May 2002. However, in the circumstances, the expulsion order interfered to a certain degree with his right to respect for family life with regard to his family of origin. The applicant had not contested that his expulsion had been in accordance with the law and that it pursued an aim or aims that were legitimate under art 8(2), namely the maintenance of public safety and the prevention of crime. Accordingly, the Court’s task consisted of ascertaining whether the expulsion had struck a fair balance between the relevant interests, namely the applicant’s right to respect for private and family life on the one hand, and the maintenance of public safety and the prevention of crime on the other. The expulsion order imposed on the applicant had had a serious impact on his private life and on the relationship with his parents. However, having regard to all the circumstances of the instant case, and in particular to the seriousness of the applicant’s offences, the respondent state had not assigned too much weight to its own interest when it had decided to impose that measure. A fair balance had been struck in that the applicant’s expulsion had been proportionate to the aims pursued and therefore necessary in a democratic society. Accordingly, there had been no violation of art 8; Boultif v Switzerland [2001] ECHR 54273/00 and Uner v Netherlands [2006] ECHR 46410/99.

Cases referred to in judgment

Benhebba v France [2003] ECHR 53441/99, ECt HR.

Boultif v Switzerland (2001) 33 EHRR 1179, [2001] ECHR 54273/00, ECt HR.

El Boujaidi v France (1997) 30 EHRR 223, [1997] ECHR 25613/94, ECt HR.

Ezzouhdi v France [2001] ECHR 47160/99, ECt HR.

Jankov v Germany [2000] ECHR 35112/92, ECt HR.

Keles v Germany [2005] ECHR 32231/02, ECt HR.

Radovanovic v Austria [2004] ECHR 42703/98, ECt HR.

Uner v Netherlands[2006] 3 FCR 340, ECt HR.

Yildiz v Austria[2003] 2 FCR 182, ECt HR.

Yilmaz v Germany [2003] ECHR 52853/99, ECt HR.

Application

The applicant, Erkan Kaya, lodged an application against the Federal Republic of Germany, whereby he alleged, in particular, a violation of art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 in that he had been expelled from German territory following a criminal conviction. The facts are set out in the judgment.

PROCEDURE

1. The case originated in an application (no 31753/02) against the Federal Republic of Germany lodged with the court under art 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘the Convention’) by a Turkish national, Mr Erkan Kaya (‘the applicant’), on 21 August 2002.

2. 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, of the German Ministry of Justice. The Turkish government exercised its right to intervene (art 36(1) of the Convention and r 44(1) (b)).

3. The applicant alleged, in particular, a violation of art 8 of the Convention in that he had been expelled from German territory following a criminal conviction.

4. By a decision of 11 May 2006 the court declared the application partly admissible.

5. The applicant and the German government each filed further written observations (r 59(1)). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (r 59(3) in fine), the parties replied in writing to each other’s observations.

THE FACTS I. The circumstances of the case

6. The applicant was born in 1978 and lives in Istanbul in Turkey.

1. General background

7. 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.

8. On 19 May 1994 the competent authorities granted the applicant a permanent residence permit.

9. On 31 January 1996 the Mannheim public prosecutor discontinued juvenile-delinquency proceedings brought against the applicant for grievous bodily harm.

10. 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

11. On 27 January 1999 the applicant was arrested and subsequently detained on remand.

12. On 8 September 1999 the Mannheim District Court convicted the applicant of two counts of attempted aggravated trafficking in human beings, several counts of battery and aggravated battery, procurement, purchasing illegal drugs, 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.

13. 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.

14. 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 20 years’ old when committing those offences and that there was no indication of retarded...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT