Uner v Netherlands

JudgeJUDGE WILDHABER (PRESIDENT),JUDGES ROZAKIS,COSTA,BRATZA,ZUPANCIC,BONELLO,CAFLISCH,TURMEN,HEDIGAN,TSATSA-NIKOLOVSKA,MARUSTE,KOVLER,ZAGREBELSKY,GARLICKI,MYJER,JOCIENE AND SIKUTA,MR T L EARLY (SECTION REGISTRAR)
Judgment Date18 January 2006

Human rights – Private and family life – Applicant Turkish national – Applicant subsequently obtaining permanent residence in the Netherlands – Applicant’s partner and two children Netherlands citizens – Applicant convicted of violent offences – Applicant’s residence permit subsequently withdrawn and ten-year exclusion order imposed – Whether applicant’s right to family life violated – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.

The applicant, a Turkish national, together with his mother and two brothers, joined his father in the Netherlands when he was 12 years old. In 1988, he was granted a permanent residence permit. In 1989, he was convicted of an offence of breach of the peace. The following year he was convicted of a violent offence against persons. In 1991, he entered into a relationship with a Netherlands national and a son was born in February 1992. On 30 June of that year the applicant was convicted of another violent offence and was sentenced to community service. The relationship began to suffer and the applicant moved out in November. In 1994, the applicant was convicted of manslaughter and assault and sentenced to seven years’ imprisonment. A second son was born to the applicant and his partner on 26 June 1996. By a decision of 30 January 1997, the applicant’s permanent residence permit was withdrawn and a ten-year exclusion order was imposed on the basis that the interests of public safety and the prevention of disorder and crime outweighed the interest of the applicant being able to continue his family life with his partner, children, parents and brothers in the Netherlands. The applicant complained to the European Court of Human Rights that as a result of the decision not to allow him to reside in or visit the Netherlands he was unable to exercise family life with his partner and children in that country in contravention of his right to respect for his family life as guaranteed by art 8 of the European Convention on Human Rights. In a judgment delivered on 5 July 2005, the court decided that there had been no violation of art 8 of the Convention on the basis that the state could not be said to have failed to strike a fair balance between the applicant’s interests and its own interest in preventing disorder and crime. In October 2005, the applicant requested, in accordance with art 43 of the Convention and r 73, that the case be referred to the Grand Chamber. That request was accepted by the Grand Chamber in

November 2005. As he had done before the Chamber, the applicant argued that the government had failed to strike a fair balance.

Held – In order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued, the following criteria had to be considered: (i) the nature and seriousness of the offence committed by the applicant; (ii) the length of the applicant’s stay in the country from which he or she was to be expelled; (iii) the time elapsed since the offence was committed and the applicant’s conduct during that period; (iv) the nationalities of the various persons concerned; (v) the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life; (vi) whether the spouse knew about the offence at the time he or she entered into a family relationship; (vii) whether there were children in the marriage, and if so, their age; (viii) the seriousness of the difficulties which the spouse was likely to encounter in the applicant’s country of origin; and (ix) the particular ties which those immigrants had developed with the host country where they would have spent most of their life. Regardless of the existence or otherwise of a ‘family life’, the expulsion of a settled migrant constituted interference with his or her right to respect for family life. It would depend on the circumstances of the particular case whether it was appropriate for the court to focus on the ‘family life’ rather than the ‘private life’ aspect. In those circumstances, all the relevant criteria should be taken into account in all cases concerning settled migrants who were to be expelled and/or excluded following a criminal conviction. In the instant case, having regard to the nature and seriousness of the offences committed by the applicant, and bearing in mind that the exclusion order was limited to ten years, it could not be said that the state had assigned too much weight to its own interests when it had decided to impose that measure. In that context, the exclusion order had not been of a permanent nature and had provided that the applicant, on condition that he complied with a number of requirements, would be able to return to the Netherlands once the exclusion order had been lifted. In those circumstances, a fair balance had been struck in that the applicant’s expulsion and exclusion from the Netherlands had been proportionate to the aims pursued and therefore necessary in a democratic society. Accordingly, there had been no violation of art 8 of the Convention; Boultif v Switzerland [2001] ECHR 54273/00 considered.

Cases referred to in judgment

Abdulaziz v UK (1985) 7 EHRR 471, [1985] ECHR 9214/80, ECt HR.

Amrollahi v Denmark [2002] ECHR 56811/00, ECt HR.

Berrehab v Netherlands (1988) 11 EHRR 322, [1988] ECHR 10730/84, ECt HR.

Boujlifa v France [1997] ECHR 25404/94, ECt HR.

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

Dalia v France [1998] ECHR 26102/95, ECt HR.

K and T v Finland[2001] 2 FCR 673, ECt HR.

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

Maaouia v France [2000] ECHR 39652/98, ECt HR.

Mehemi v France [1997] ECHR 25017/94, ECt HR.

Mikulic v Croatia[2002] 1 FCR 720, ECt HR.

Mokrani v France [2003] ECHR 52206/99, ECt HR.

Moustaquim v Belgium (1991) 13 EHRR 802, [1991] ECHR 12313/86, ECt HR.

Pretty v UK (2002) 12 BHRC 149, ECt HR.

Sahin v Turkey [2005] ECHR 44774/98, ECt HR.

Sen v Netherlands [2001] ECHR 31465/96, ECt HR.

Sezen v Netherlands[2006] 1 FCR 241, ECt HR.

Slivenko v Latvia[2004] 2 FCR 28, ECt HR.

Tuquabo-Tekle v Netherlands[2005] 3 FCR 649, ECt HR.

Tyrer v UK (1978) 2 EHRR 1, [1978] ECHR 5856/72, ECt HR.

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

Application

The applicant, Ziya Uner, lodged an application with the European Court of Human Rights against the Netherlands whereby he alleged a violation of art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 in that he had been excluded from the Netherlands following a criminal conviction. The facts are set out in the judgment.

18 October 2006. The European Court of Human Rights (Grand Chamber) delivered the following judgment.

PROCEDURE

1. 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 art 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by a Turkish national, Mr Ziya Uner (‘the applicant’), on 4 August 1998.

2. 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.

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

4. The application was transmitted to the court on 1 November 1998, when Protocol No 11 to the Convention came into force (art 5(2) of Protocol No 11).

5. The application was allocated to the Second Section of the court (r 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 arts 3 and 6 of the Convention, arts 2 and 4 of Protocol No 7 and art 14 of the Convention taken in conjunction with art 4 of Protocol No 7, and adjourned its examination of the complaint under art 8 of the Convention. By a decision of 1 June 2004 the Chamber declared the remainder of the application admissible.

6. On 1 November 2004 the court changed the composition of its sections (r 25(1)), but this case remained with the Chamber constituted within the former Second Section.

7. On 5 July 2005 a Chamber of that section, composed of the following judges: Mr J-P Costa, President, Mr AB Baka, Mr L Loucaides, Mr C Birsan, Mr K Jungwiert, Mrs W Thomassen, Mr M Ugrekhelidze, and also of Mrs S Dolle, Section Registrar, delivered a judgment in which it held by a majority that there had been no violation of art 8 of the Convention. The concurring opinion of the President, Mr Costa, and the dissenting opinion of Mr Baka were annexed to the judgment.

8. In a letter of 4 October 2005 the applicant requested, in accordance with art 43 of the Convention and r 73, that the case be referred to the Grand Chamber. A panel of the Grand Chamber accepted that request on 30 November 2005.

9. The composition of the Grand Chamber was determined according to the provisions of art 27(2) and (3) of the Convention and r 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 (r 28). The government subsequently agreed that Mr E Myjer, the current judge elected in respect of the Netherlands, should sit in her place. Mr SE Jebens, who was prevented from sitting in the second deliberations, was replaced by the first substitute judge, Mr R Maruste (r 24(3)).

10. 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 (art 36(2) of the Convention and r 44(2) (a)). The parties were invited to reply...

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