FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 20277/05 by Hizir KILIC against Denmark

The European Court of Human Rights (Fifth Section), sitting on 22 January 2007 as a Chamber composed of:

Mrs S. Botoucharova , President , Mr P. Lorenzen , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 30 May 2005,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Hizir Kilic, is a Turkish national who lives in Hellerup. He is represented before the Court by M r s Jane Ranum, a lawyer practising in Copenhagen .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was born on 20 August 1985 in Denmark where he spent his childhood and youth. He speaks Turkish and Danish.

The applicant ’ s parents, three siblings, his paternal grandmother and two uncles also all live in Denmark . Every second year, the applicant has been on holiday for a longer period in Turkey , where his mother ’ s family and two paternal aunts live. The applicant ’ s family in Denmark owns a house in Turkey with several apartments, which are used by the family upon their visits.

It appears that as a child, he went for four years to a private school which was attended mainly by pupils with a Turkish background. The applicant left school after nine years ’ schooling. He does not have any training or higher education and has not had any significant affiliation to the labour market.

By a City Court judgment of 5 December 2000 the applicant was convicted of assault, committed jointly with another perpetrator, and was sentenced to thirty days ’ imprisonment suspended on probation.

By a City Court judgment of 29 April 2002 the applicant was convicted, inter alia , of assault, committed jointly with another perpetrator, and was sentenced to thirty days ’ imprisonment.

By a City Court judgment of 10 June 2002 the applicant was convicted of robbery and, inter alia , assault, committed jointly with several other perpetrators. He was sentenced to six months ’ imprisonment, of which three months were suspended.

On 14 August 2003 the applicant and his cousin were arrested and charged, inter alia , with attempted robbery, aggravated assault and manslaughter. They were detained on remand the following day.

On 9 November 2004 they were convicted by the High Court of Eastern Denmark (Østre Landsret) sitting with a jury. It found it established that on 9 August 2003, when the applicant was seventeen years old and his cousin sixteen, they had jointly threatened a young man, an Italian tourist, with a knife in order to steal his money. Although the young man was stabbed by the applicant, he first managed to flee. Shortly thereafter the applicant and his cousin ran him down, beat him, and the applicant stabbed him several times, the injuries inflicted resulting in the victim ’ s death.

In the same judgment of the High Court of Eastern Denmark, the applicant was also convicted of attempted burglary and violation of the Act on Arms committed on 13 February 2003; and of a ggravated assault, robbery and attempted extortion committed on 6 September 2004, when the applicant was eighteen years old and detained on remand. The court found it established, inter alia , that the applicant jointly with an inmate had threatened a third inmate with a screw-driver in order to steal his watch and make him provide them with an amount equal to EUR 60,000 from outside the prison . Moreover, they had beaten and kicked him , inter alia , on the head with a stranglehold on him , resulting in the victim losing con sciousn ess several time s and being severely injured.

According to a psychiatric report of 6 January 2004, the applicant was not mentally ill but he did have character flaws such as limited empathy . Since puberty he had abused hashish.

In its judgment, the High Court of Eastern Denmark sentenced the applicant to ten years ’ imprisonment. In addition he was expelled from Denmark for an indefinite time to be implemented after the sentence had been served.

The applicant ’ s cousin, who was also convicted of additional offences to attempted robbery, aggravated assault and manslaughter, was sentenced to eight years ’ imprisonment and expulsion from Denmark for an indefinite time.

Upon appeal, the Supreme Court ( Højesteret) confirmed the sentences on 15 March 2005. With regard to the order to expel the applicant and his cousin, the majority of six judges held as follows:

[The applicant] was born in Denmark , whereas [his cousin] arrived as a three ‑ year ‑ old. They have spent their youth and had their schooling in this country where also their parents and siblings live. Thus, they have a strong connection with the Danish society and to people living here. At the same time, however, they have a [significant] connection with Turkey and Turkish culture. They speak Turkish and approximately every second year they have visited Turkey where they have a big family. Both have been previously convicted, and have now been sentenced to longer prison terms, inter alia , for manslaughter, attempted robbery and aggravated assault. Having taken all considerations into account, in our view neither the elements mentioned in section 26, subsection 1 of the Aliens Act ( Udlændi n geloven ) nor Article 8 of the Convention speak decisively against [their] expulsion. Accordingly, we vote [for their expulsion].

The minority of one judge held as follows:

In my view, when taking all the elements mentioned in section 26, subsection 1 of the Aliens Act into account, the connection which the applicant and [his cousin] have with Turkey and Turkish culture, is not of such an extent and character that it has decisive weight when compared to their strong connection to the Danish society and people living here. In my opinion, the latter speaks significantly against expelling the applicant [and his cousin] from Denmark . Accordingly, notwithstanding the serious crimes committed, I vote [against their expulsion].

B. Relevant domestic law

The relevant provision of the Aliens Act ( Udlændingeloven ) applicable at the time read as follows:

Section 22

“An alien who has lawfully stayed in Denmark for more than the last seven years, and an alien issued with a residence permit under sections 7or 8 may be expelled only if:

(i) the alien is sentenced to minimum 4 years imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration.

...

(vi) the alien is sentenced, pursuant to ... Articles ...[manslaughter, aggravated assault , robbery, etc] of the Penal Code to imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature.”

Section 26

1. In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of:

(i) the alien ’ s ties with the Danish community, including whether the alien came to Denmark in his childhood or tender years;

(ii) the duration of the alien ’ s stay in Denmark ;

(iii) the alien ’ s age, health, and other personal circumstances;

(iv) the alien ’ s ties with persons living in Denmark ;

(v) the consequences of the expulsion for the alien ’ s close relatives living in Denmark ;

(vi) the alien ’ s slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; and

(vii) the risk that, in cases other that those mentioned in section 7(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence.

2. An alien may be expelled pursuant to section 22, subsection 1, (iv) to (vi) unless the circumstances mentioned in subsection 1 above constitute a decisive argument against doing so.

COMPLAINTS

The applicant complains that an implementation of the order to expel him to Turkey will be in breach of Article 8 of the Convention . Moreover, he complains that the expulsion order in itself is in violation of Article 3 of the Convention.

THE LAW

1. The applicant invoked 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.”

The Court recalls its case-law (see, inter alia , Üner v. the Netherlands [GC] , no. 46410/99, §§ 54-60, 18 October 2006) in which it reaffirmed that the member States are entitled to control the entry of aliens into its territory and their residence there, and that this principle applies regardless of whether an alien entered the host country as an adult or at a very young age, or was perhaps even born there. Moreover, it stated that 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, such an absolute right not to be expelled cannot, however, be derived from Article 8 of the Convention. Moreover, 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 power of the Contracting States to expel aliens.

Nevertheless, as case-law amply demonstrates, there are circumstances where the expulsion of an alien will give rise to a violation of Article 8, and it is 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 (see for example Mokrani v. France , no. 52206/99, § 31, 15 July 2003). 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, as far as relevant to the present case, 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;

- the solidity of social, cultural and family ties with the host country and with the country of destination.

The Court first notes that the applicant was nineteen years old when, on 9 November 2004, he was convicted by the High Court of Eastern Denmark and the expulsion order was imposed on him. He was not married and he did not have children. As it has pointed out, not all settled 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, among others, Üner v. the Netherlands [GC] , quoted above, § 59), 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.

The Court therefore considers that the impugned measures constituted an interference with the applicant ’ s rights to respect for his private life within the meaning of Article 8 §1 of the Convention, that this 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 in accordance with Article 8 § 2 of the Convention.

Thus, it remains to be ascertained whether the Danish courts struck a fair balance between the relevant interests, namely the applicant ’ s right to respect for his private life, on the one hand, and the prevention of disorder and crime, on the other (see, inter alia, Amrollahi v. Denmark , no. 56811/00, § 34, 11 July 2002; and C ö mert v. Denmark (dec.), no. 14474/ 03, 10 April 2006).

Having been born in Denmark , the applicant was a second generation immigrant. His parents and siblings, his paternal grandmother and two uncles also all lived there and he spoke Danish. Thus, although the applicant left school after nine years ’ schooling and did not have any training or higher education or any significant affiliation to the labour market, the Court does not doubt that he had strong ties with the Denmark.

At the same time, however, the Court is convinced that the applicant also had strong ties with Turkey . It recalls in this respect that the applicant spoke Turkish, that his mother ’ s family and two paternal aunts lived there, that every second year, the applicant went on holidays for a longer period in Turkey, and that his family in Denmark owned a house in Turkey with several apartments which were used by them upon visits to their country of origin.

Furthermore, the order to expel the applicant was imposed after he had been sentenced to a prison sentence of ten years, inter alia , for attempted robbery, aggravated assault and manslaughter committed during a probation period imposed by a previous conviction, as well as a ggravated assault, robbery and attempted extortion committed during the applicant ’ s detention on remand. Accordingly, the offences committed by the applicant were of a very serious nature. In addition, taking his previous convictions into account, it does not appear unreasonable if the Danish courts concluded that the applicant displayed consistent and extreme violent propensities .

In these circumstances, the Court finds that the interference was supported by relevant and sufficient reasons and was proportionate in that a fair balance was struck between the applicant ’ s right to respect for his private life, on the one hand, and the prevention of disorder or crime, on the other hand.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. The applicant also invoked Article 3 of the Convention, which read:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The applicant has submitted that the imposition of the expulsion order in itself contravened the said provision, but has not submitted any additional facts to those relati ng to the complaint under Article 8 of the Convention. In the light there of and having regard to its conclusions above, the Court finds that the applicant has failed to substantiate any appearances of a violation of Article 3 of the Convention.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Snejana Botoucharova Registrar President