Issues under Article 8 (right to respect for private and family life) of the Convention
II. RELEVANT DOMESTIC LAW 30. The rights of entry and residence for foreigners were governed until 31 December 2004 by the Aliens Act ( Ausländergesetz ) and from 1 January 2005 by the Residency Act ( Aufenthaltsgesetz ). 31. By section 47(1), point 1, of the Aliens Act, a foreigner is to be expelled where he or she has been sentenced to a minimum of three years'imprisonment for having wilfully committed one or more criminal offences. 32. If a foreigner was born in Germany and is in possession of a permanent residence permit, he or she may only be expelled if serious reasons relating to public safety and order justify the expulsion (section 48(1)). Generally, this will be the case where section 47(1) applies ( Regelausweisung ). 33. Pursuant to section 8(2), an alien who has been expelled is not permitted to re-enter German territory. This effect can, as a rule ( in der Regel ), be limited in time upon application. A similar provision is contained in section 11 of the Residency Act. 34. According to section 44 (1) no.1 of the Aliens Act and section 51 (1) no. 5 of the Residency Act, an alien's residence permit expires on issue of an expulsion order against him. 35. Section 85 of the Aliens Act, as in force from 1 July 1993 until 31 December 1999, provided as follows: “(1) An alien who applies for naturalisation between the age of 16 and 23 shall be naturalised provided that he or she 1. loses or relinquishes his or her former nationality, 2. has been legally residing in Germany for eight years, 3. has attended a school for six years, including at least four years of attendance at a school providing general education, and 4. has not been convicted of a criminal offence. (2) There shall be no entitlement to naturalisation if the alien does not possess a residence permit. Naturalisation may be denied if there is a ground for expulsion.” 36. Section 27 of the Residency Act provides that a residence permit is to be granted for reasons of family reunion. By section 28, a residence permit is to be granted to a German national's spouse or minor child, or to the parent of a minor German national in order to exercise parental authority. THE LAW 37. The applicant complained that his expulsion had violated his right to respect for his private and family life under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1. The applicant's submissions 38. The applicant submitted that his expulsion had interfered with his rights under Article 8 under the limbs of both private and family life. This interference was disproportionate in view of the fact that he had lived his whole life in Germany, that he had not maintained any contact with Turkey and that his family relied on his support. Being the oldest son, he played a special role in the family. He had only poor knowledge of the Turkish language, as his parents originated from Bosnia and the family spoke Bosnian at home. This was not disproved by the fact that he had sent letters in Turkish to his mother from prison, as he had dictated the letters in German to his Turkish cellmate. 39. He further pointed out that both his parents had been suffering from depression since his brother had died in an accident several years earlier. The applicant's presence was essential for their well-being. In that connection, he submitted a medical certificate of 5 May 2000 attesting that both his parents were being treated for depression as a result of his current personal circumstances. 40. With regard to his criminal conviction, the applicant emphasised that he had been only twenty years of age at the time of the offences and that he had been addicted to drugs. He further pointed out that he had not committed the offences on his own, but jointly with a more experienced co-offender. 41. The offences had all been committed during a short period of not more than six months. Apart from that conviction, he had no criminal record, as the juvenile proceedings which had been discontinued when he was seventeen years old could not be taken into account in the present proceedings. He had come to terms during his detention with the reasons why he had committed the offences, and did not pose a risk to public safety. He further alleged that the domestic courts had failed to carry out a thorough assessment of the risk of his re - offending. He had not committed any further offences during the five years following his expulsion. 42. Even if allowed re-entry to Germany on the expiry of the period of validity of his exclusion order, he would not regain his former residence status. He would only obtain a limited residence permit, which he would lose if he separated from his wife within two years following re-entry. Furthermore, he would be compelled to serve the remainder of his prison sentence, which had been suspended in view of his deportation. By letter of 3 1 January 2007 the applicant informed the Court that he had not been granted a residence permit, as he had been unable to submit an attestation of his being registered as a resident. He alleged that the Turkish authorities did not issue such documents. 43. Lastly, the applicant alleged that an application for naturalisation prior to his criminal conviction would not have had any prospect of success, as at the time he had not earned enough money for his own upkeep. 2. The Government's submissions 44. In the Government's submission, the applicant's expulsion had interfered only with his right to the enjoyment of his private life, since by the time the expulsion order had become final he was an adult and had not yet founded a family of his own. The applicant had not established that he relied on his family's support or that his family relied on his support to an extent which necessitated his presence in Germany. The fact that the applicant's parents had suffered as a result of their separation from him and that this might lead to depression did not mean that they depended on his presence in Germany. Furthermore, the Government argued, the applicant's sister should also be in a position to offer them a certain amount of support. 45. The applicant's expulsion had been in accordance with the law and necessary for serious reasons relating to public order and security, namely the risk of his reoffending. 46. With regard to the question whether the domestic authorities had struck a fair balance between the competing interests at stake, the Government accepted that the applicant belonged to the group of so-called “second-generation” immigrants and was entitled to a higher degree of protection against expulsion. However, they submitted that the gravity of the offences committed by the applicant, which could not be regarded as mere examples of juvenile delinquency, justified his expulsion. In that connection, the Government emphasised the extreme brutality and the duration of his criminal activities, as well as the fact that the criminal court had identified him as the driving force behind the crimes committed jointly. Furthermore, the applicant had previously committed other violent acts. The fact that he consumed drugs further justified the assumption that he would commit additional crimes in order to procure drugs for himself. 47. The Government further submitted that the applicant had failed to integrate into the social and economic environment in Germany. Having finished his training as a car mechanic, he had not shown any inclination to find appropriate employment. His family of origin had not prevented him from committing criminal offences. In so far as his social prospects had improved through the founding of his own family, that could not be taken into account in the proceedings relating to his expulsion. The Government did not attach credence to the applicant's allegation that he had not maintained any contact with Turkey and that he did not have sufficient knowledge of the Turkish language. They pointed out that during his detention on remand he had written letters to his mother in Turkish. 48. The Government further emphasised that the applicant had not applied for naturalisation prior to his criminal conviction, even though he would have satisfied the necessary prerequisites laid down in section 85(1) of the Aliens Act, as in force until 31 December 1999 (see Relevant domestic law, above). 49. The Government lastly pointed out that the domestic authorities had had to decide on the setting of a time-limit in separate proceedings which did not form the subject matter of the present application. In its decision of 19 July 2004 the Karlsruhe Regional Government had carried out a fresh assessment of the competing interests at stake, including the applicant's new family bonds. They further pointed out that the applicant had failed to exhaust domestic remedies with respect to the duration of his exclusion, as he had not appealed against the Karlsruhe Administrative Court's judgment of 11 April 2006. 50. If he fulfilled the conditions set out in the decision of 19 July 2004 (see paragraph 27 above), he would be permitted to re-enter German territory. Having regard to his German wife and child, he would be granted a residence permit. By letters of 22 February and 7 March 2007 the Government further submitted that the applicant had presented the confirmation of registration and fulfilled all conditions set down in the Regional Government's decision of 19 July 2004 (see § 27 above). He was thus no longer prevented by the exclusion order from re-entering the German territory. 3. The Court's assessment a) General principles 51. The Court reiterates at the outset that the Convention does not guarantee the right of an alien to enter or to reside in a particular country and that a State is entitled, subject to its treaty obligations, to control the entry of aliens into its territory and their residence there. In pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, most recently, Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ ... ). 52. As the Grand Chamber has affirmed in its Üner judgment, these principles apply regardless of whether an alien entered the host country as an adult or at a very young age, or was even born there. In particular, Article 8 of the Convention does not confer to persons who were born in a member State an absolute right not to be expelled from the territory of that State (see Üner, cited above, § § 55 -56 ). The Grand Chamber has further held that an alien's expulsion following his criminal conviction does not constitute double punishment, either for the purposes of Article 4 of Protocol No. 7 or in a more general way (see Üner, cited above, § 56). 53. Nevertheless, there are circumstances where the expulsion of an alien will give rise to a violation of Article 8 of the Convention and it is evident that the Court will have regard to the special situation of aliens who have spent most, if not all, of their childhood in the host country, where they were brought up and received their education (see for example Üner, cited above, § 58 ). 54. The relevant criteria to be used in order to assess whether an expulsion is necessary in a democratic society and proportionate to the legitimate aim pursued are the following ( Boultif v. Switzerland, no. 54273/00, § 40, ECHR 2001 ‑ IX; Üner, cited above, §§ 57-60): - the nature and seriousness of the offence committed by the applicant; - the length of the applicant's stay in the country from which he or she is to be expelled; - the time elapsed since the offence was committed and the applicant's conduct during that period; - the nationalities of the various persons concerned; - the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life; - whether the spouse knew about the offence at the time when he or she entered into a family relationship; - whether there are children of the marriage, and if so, their age; and - the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled. 55. In the Üner judgment ( cited above, § 58), the Court made further explicit the following two criteria: - the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and - the solidity of social, cultural and family ties with the host country and with the country of destination. b) Application of these principles to the instant case 56. Turning to the present case, the Court notes that the Government have not contested that the expulsion order imposed on the applicant constituted an interference with his private life. However, they considered that he could not claim to have had a family life within the meaning of Article 8 § 1. The Court notes, firstly, that the applicant was born in Germany, where he had legally resided, attended school and completed vocational training. It follows that the applicant's expulsion has to be considered as an interference with his right to respect for his private life guaranteed in paragraph 1 of Article 8. 57. The question whether the applicant also enjoyed family life within the meaning of Article 8 has to be determined with regard to the position at the time the exclusion order became final (see El Boujaïdi v. France, judgment of 26 September 1997, Reports of Judgments and Decisions 1997 ‑ VI, p. 1990, § 33; Yildiz v. Austria, no. 37295/97, § § 34 and 44, 31 October 2002; Yilmaz v. Germany, no. 52853/99, § § 37 and 45, 17 April 2003; and, implicitly Üner, cited above, § 64). The question as to when the expulsion order became final has to be determined by applying the domestic law. According to the domestic law, the complaint to the Federal Constitutional Court is devised as an extraordinary remedy which does not prevent the contested decision from becoming final. It follows that the expulsion order became final on 7 March 2001 when the Baden-Württemberg Administrative Court of Appeal refused to grant the applicant leave to appeal. The Court's task is thus to state whether or not the domestic authorities had complied with their obligation to respect the applicant's private and family life at that particular moment, leaving aside circumstances which only came into being after the authorities took their decision (see Yildiz, cited above, § 44). At that time, the applicant had not yet founded a family of his own, as he married in May 2002 and his child was born subsequently. 58. With regard to the applicant's relation to his family of origin, the Court notes that the applicant had been born in Germany, where he lived with his parents and sister until his arrest in January 1999. During his prison term, he kept in touch with his family, at least by writing letters to his mother. He further asserted that he played a special role in the family following the tragic death of his brother. Under these circumstances, the Court finds that the applicant's expulsion interfered to a certain degree also with his right to respect for his family life. 59. Such interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”. 60. The applicant has not contested that his expulsion was in accordance with the relevant provisions of the Aliens Law and that it pursued a legitimate aim within the meaning of paragraph 2 of Article 8, namely the maintenance of public safety and the prevention of crime. 61. Accordingly, the Court's task consists in ascertaining whether the applicant's expulsion struck a fair balance between the relevant interests, namely the applicant's right to respect for his private and family life, on the one hand, and the maintenance of public safety and the prevention of crime, on the other, by applying the criteria set out above (see paragraphs 54 and 55 ), insofar as relevant. 62. With regard to the nature and gravity of the offences committed by the applicant, the Court notes that these were very serious, including two attempts of aggravated trafficking in human beings, of procuration and of several counts of battery. The domestic courts put special emphasis on the exceptional brutality with which the applicant had abused his victims, one of which having been his former partner. They further found that the applicant's offences demonstrated that he had not been willing to respect the rights and dignity of his fellow human beings. Insofar as the applicant, in his written submissions before the Court, attempted to shift responsibility for the jointly committed offences towards the co- defendant, the Court notes that the District Court, in its judgment, had identified the applicant himself as the driving force behind the actions. Although the applicant was twenty years of age when committing those criminal offences and did not have a previous criminal record, their nature and gravity exclude the possibility to regard them as mere examples of juvenile delinquency. Accordingly, the District Court did not find any reason to apply juvenile law to the applicant's deeds. The relatively moderate prison sentence of three years and four months was, according to the District Court, only owed to the fact that the applicant had confessed his crimes during the main hearing. 63. As to the applicant's conduct since the offences were committed, the Court observes that the time between his conviction and his deportation was spent in detention. While the applicant alleges that, during his detention, he had come to terms with the reasons why he had committed the offences and therefore did not pose a risk to public safety, he did not further substantiate by which means he had achieved that aim. 64. With regard to the applicant's personal ties to Germany, the Court considers at the outset that the applicant was born and spent all his life in Germany, where his parents had lawfully resided for thirty years and where he held a permanent residence status. In these circumstances, the Court does not doubt that the applicant had strong ties with Germany. That said, it cannot overlook the fact that the applicant, in spite of having completed his vocational training as a car-mechanic, had not integrated into the labour market, but lived for a certain period of time from the earnings he had forcefully extorted from his former partner. The Court further notes that the applicant did not, at any time prior to his criminal conviction, apply for naturalisation. According to the applicant, such request would not have had any prospect of success, as he had not been able to earn his upkeep. The Court notes, however, that section 85 of the Aliens Act as in force until 31 December 1999, which regulated the naturalisation of young adults, did not require that the respective person should be able to earn his or her upkeep. The Court is therefore not convinced that a request for naturalisation would have lacked prospect of success. 65. With regard to the applicant's ties with Turkey, the Court notes that he had visited this country only occasionally on holidays. He has, however, worked there for at least three weeks in July 1998. The Court further notes that the applicant, during his detention, wrote letters to his mother using the Turkish language. Even if it should be true that the applicant did not write these letter with his own hands, but dictated them to a cell-mate, this is an indication that the use of the Turkish language was not uncommon in the applicant's family of origin. 66. With regard to the applicant's relation to his family of origin, the Court notes that the applicant has lived with his parents and sister until his arrest in January 1999. The Court accepts that his parents, having lost one son in a tragic accident, suffered considerably from the separation from their second son, in spite of the presence of their daughter. It has, however, not been established that the parents should not have been able to maintain the relationship by visiting their son in Turkey. 67. As the Court has to determine the proportionality of the domestic decisions in the light of the position when the expulsion order became final in March 2001 (see, mutatis mutandis, El Boujaïdi, cited above, § 33, and the further references in paragraph 57, above ), the applicant cannot plead his relationship with his German wife, whom he married only after deportation to Turkey, and to their subsequently born child. 68. As to the proportionality of the impugned measure, the Court finally notes that the expulsion order issued against the applicant was not, from the outset, subject to a time-limit. In this context, the Court observes that in a number of cases it found a residence prohibition disproportionate on account of its unlimited duration (see, for instance, Ezzouhdi v. France, no. 47160/99, § 35, 13 February 2001; Yilmaz, cited above, § § 48-49, 17 April 2003; Radovanovic v. Austria, no. 42703/98, § 37, 22 April 2004; and Keles v. Germany, no. 32231/02, § 66, 27 October 2005 ) while, in other cases, it has considered the limited duration of a residence prohibition as a factor speaking in favour of its proportionality (see Benhebba v. France, no. 53441/99, § 37; Jankov v. Germany (dec.), no. 35112/92, 13 January 2000; and Üner, cited above, § 65). 69. Turning to the present case, the Court notes that domestic law provided that the exclusion from German territory could, as a rule, be limited in time upon separate request (see paragraph 33 above). There is nothing to indicate in the instant case that this possibility was merely theoretical. The Court further takes note of the Government's submissions that the applicant has in the meantime fulfilled the conditions attached to the time-limit and is no longer barred from entering German territory. Thus, it cannot be said that the applicant in this specific case was left without any perspective of returning to Germany. 70. The Court appreciates that the expulsion order imposed on the applicant had a serious impact on his private life and on the relationship with his parents. However, having regard to all circumstances of the case, and in particular to the seriousness of the applicant's offences, which cannot be trivialised as mere examples of juvenile delinquency, the Court does not consider that the respondent State assigned too much weight to its own interest when it decided to impose that measure. 71. In the light of the above, the Court finds that a fair balance was struck in this case in that the applicant's expulsion was proportionate to the aims pursued and therefore necessary in a democratic society. Accordingly, there has been no violation of Article 8 of the Convention.
The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It found that the applicant’s expulsion had been in accordance with the Convention, particularly given that he had been sentenced for rather serious offences in Germany, and had been eventually able to return to Germany.