THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32365/96 by Mohammed AFTAB and Others against Norway

The European Court of Human Rights ( Third Section ), sitting on 4 May 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr L. Loucaides, Mr P. KÅ«ris, Mrs F. Tulkens, Mr K. Jungwiert, Mrs H.S. Greve, Mr M. Ugrekhelidze , judges , [Note1]

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 28 June 1996 and registered on 22 July 1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicants are Mr Mohammed Aftab and his wife Sarwari Begum , both Pakistani nationals and born respectively in 1963 and 1964, and also their five children (born in the years indicated in brackets), who are Norwegian nationals: Sabar Ali (1985), Atia (1986), Quasam Ali (1989), Muqaddes (1993) and Mubashir (1995).  The first applicant lives in Faisalabad , Pakistan, and the other applicants live in Sandvika , near Oslo, Norway.  They are represented before the Court by Mr Kaj R. Bjørnstad , a lawyer practising in Oslo.

The facts of the case, as described mainly in the judgments of the national courts, may be summarised as follows.

As his parents were very poor, the first applicant Mohammed Aftab was cared for by his uncle as his foster father.  His uncle arrived in Norway in 1971 and declared the first applicant as his son.  In May 1976, at the age of 12 and after having completed 5 school years in Pakistan during which he was taught in oral and written Urdu , the latter arrived in Norway.  His foster father wished the first applicant to take part in the maintenance of the family in Pakistan.  He was granted a permanent residence permit.  In the autumn of 1976 he started at a Norwegian school and completed primary and secondary school in 5 years, following which, he took a basic high school course in engineering and mechanics.  In 1981 he started work and, except for a short break in 1984, he was continuously in stable employment with a relatively good income until July 1990, when he was arrested for narcotics offences.

The first applicant had visited Pakistan in 1979 together with his foster father.  He had again visited the country in 1982, in connection with his marriage, in 1984 and in 1989.  Each visit had lasted between 4 and 7 weeks.  His wife arrived in 1985 and they had their first child the same year.  The first applicant’s wife acquired Norwegian citizenship in 1992, but he never sought to obtain this himself as he had never felt particularly concerned by the question of citizenship.

On 29 May 1991 the Eidsivating High Court ( lagmannsrett ) convicted the first applicant under Article 162 (2), cf. Article 62, of the Penal Code for having assisted in the sale of 43 grams of heroin and for having sold drugs, probably heroin, for approximately NOK 180,000.  It sentenced him to 5 years' and 6 months' imprisonment.  He had no previous convictions in Norway.  The High Court found it established that the applicant had contacted his co-accused, T., a Pakistani national, to inquire whether he would be interested in marketing heroin in or around Mandal , a small district town in another part of the country.  Following an affirmative answer by T., it was agreed that the latter should go to Oslo to collect the heroin.  On the agreed date and at the agreed place, T. was contacted by A., also a Pakistani national, who offered T. 43.5 grams of heroin on the applicant’s behalf, which T. took to Mandal . During the police investigations, the police, with T.'s co-operation, recorded a telephone conversation between him and the applicant concerning payment for the heroin.  Moreover, the police provided T. with NOK 80,000 in marked bank notes.  On arresting the first applicant and A., the police found NOK 10,000 of the marked notes in the first applicant's wallet and the remaining 70,000 in a flat occupied by A.  A further NOK 180,000 were found in the house of the first applicant's foster father which, it was established, were proceeds from the first applicant's sale of drugs, mainly heroin.

While the first applicant served his sentence, his children visited him in prison for 1 hour per week and 2 hours every other week.  After having served a third of the sentence, he was permitted to visit his family at home.  He was released on probation in March ‑ April 1994.

On 27 July 1992 the Aliens Directorate ( Utlendingsdirektoratet ) ordered the first applicant’s expulsion under the relevant provisions of the Aliens Act 1988 ( Utlendingsloven , Act of 24 June 1988 No. 64).  On appeal by the first applicant the Ministry of Justice upheld the decision on 17 February 1994, finding that the expulsion would not constitute a disproportionate measure against the first applicant.  In reaching this conclusion, the Ministry attached decisive importance to the fact that he had been convicted of offences under, inter alia , Article 162 of the Penal Code and had been sentenced to over 5 years’ imprisonment.  Regard was had to the fact that the trial court had found that the first applicant had attempted to sell a considerable quantity of heroin in a milieu which had not previously had problems with this drug and that his actions had been motivated exclusively by the desire for financial gain.  The trial court had found it necessary, in view of general considerations of crime prevention, to react strongly against such conduct.  Moreover, having regard to the particularly serious nature of the criminal offence in question, the Ministry did not find that the expulsion would amount to a disproportionate measure vis-à-vis the first applicant's closest family members.

The first applicant subsequently instituted proceedings before the City Court, which in a judgment of 18 August 1994 upheld the decision of the Ministry of Justice, following which the expulsion order was put into effect in September 1994.  At the time his wife was pregnant and very depressed.

After his return to Pakistan he lived in a house belonging to his foster father and was unemployed.  His eldest child visited him for a month in 1994 and his wife and all his children visited him for a month over Christmas 1995.

The applicants submitted, and adduced certain medical statements in support thereof, that the children suffered from asthma and allergies, and that the wife had suffered physically and psychologically as a result of her husband's separation from the family.

An appeal by the first applicant to the Eidsivating High Court was rejected by judgment of 3 May 1995.  The applicant then lodged an appeal with the Supreme Court ( H øyesterett ) , which in a judgment of 29 April 1996 rejected the appeal.

In his opinion, Mr Justice Skåre , on behalf of a unanimous court, recalled, inter alia , the High Court's finding that the second applicant and her children had to a slight degree been integrated into Norwegian society.  They spoke Urdu at home and the oldest children had great difficulties with the Norwegian language at school and in the kindergarten.  During the hearing the spouse showed that she had not mastered Norwegian.  As regards the merits of the case, Justice Skåre stated, inter alia :

“… Like the criminal cases which form the basis for the expulsion orders at issue in appeal cases nos. 38/996 and 39/996, there is no question in this case of such a significant amount of heroin as to warrant the application of Article 162 (3) of the Penal Code.  Nevertheless, it concerns two narcotics offences which, according to the nature and quantity of the drugs call for a very severe sentence. ... .

In the assessment it is also important to note that Mr Aftab has resided in Norway for a long period and that he arrived here quite young.  However, he has maintained his links with the Pakistani milieu, and his links to Norway are not as one-sided as one may find in certain cases of more typical second ‑ generation immigrants.  Also his spouse and children appear to have links to the Pakistani culture and milieu.

I have therefore reached the conclusion that the expulsion order cannot be regarded as incompatible with Article 8 of the Convention.  The appeal must be rejected. ...”

COMPLAINTS

The applicants complain that the deportation of the first applicant from Norway to Pakistan unjustifiably interfered with their right to respect for private and family life and thus violated Article 8 of the Convention.  Moreover, in breach of Article 14, the measure entailed discrimination against the applicant children.  In addition, the applicants complained that the review afforded by the Norwegian authorities failed to comply with Articles 6 and 13 of the Convention.

THE LAW

1. The applicants complained that the first applicant's expulsion to Pakistan constituted a violation of their right to respect for private and family life under Article 8 of the Convention, which reads:

“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.”

In the first place they argued that the expulsion did not pursue a legitimate aim.  They submitted, inter alia , that while being imposed in the general interest of crime prevention, this purpose was too sweeping and permitted covert social cleansing of non-European nationals in the Contracting States.  Moreover, the expulsion served no purpose beyond those pursued by the imposition of the sentence, the severity of which exceeded that imposed in respect of such offences in other Contracting States.

However, the Court is satisfied that the expulsion order pursued the legitimate aim under Article 8 § 2 of the Convention of the prevention of disorder or crime, notwithstanding that the first applicant's conviction and sentence also pursued that aim.

Secondly, the applicants maintained that the expulsion was not necessary in a democratic society.  Whereas the applicants did not dispute the need for a Contracting State to apply a firm policy towards drug offenders generally or the need to expel illegal immigrants and temporary residents who commit criminal offences, they stressed that there could be no pressing social need in taking remorseless action against integrated aliens, especially those who have been convicted only once and who have been offered no chance of rehabilitation.  Such action could only be justified in exceptional cases.

The Court reiterates that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens.  For that purpose they are entitled to order the expulsion of persons convicted of criminal offences.

However, their decisions in this domain must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be 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, among other authorities, the following judgments : Beldjoudi v. France, 26 March 1992, Series A no. 234-A, p. 27, § 74; Nasri v. France, 13 July 1995, Series A no. 320-B, p. 25, § 41; Boughanemi v. France, 24 April 1996, Reports of Judgments and Decisions 1996 II, Vol. 8, pp. 609-610, 41; and C. v. Belgium, 7 August 1996, Reports 1996 ‑ III, Vol. 12,  p. 924, § 31).  The Court's task is to determine whether the expulsion at issue struck a fair balance between the relevant interests, namely the applicants’ right to respect for their private and family life, on the one hand, and the prevention of disorder or crime, on the other.

The Court observes from the outset that the expulsion order was based on the particularly serious and damaging nature of the offences of which the first applicant was convicted, namely for having assisted in the sale of 43 grams of heroin and for having sold drugs, probably heroin, for a very large sum of money - approximately NOK 180,000.  Adding to the seriousness of the crime was the effort made to introduce heroin to a new area and the sole motive of the crime being financial gain - the first applicant himself not being an addict.  In the Court's view, even if the first applicant had not previously been convicted, this does not detract from the seriousness and gravity of such a crime (see the Bouchelkia v. France judgment of 29 January 1997, Reports of Judgments and Decisions , 1997-I, Vol. 28, p. 65, § 51).

Moreover, although the applicant was 12 years old when he arrived in Norway and had spent 18 years there when he was expelled, his links to that country, as opposed to those of his country of origin, were not comparable to the situation of a second-generation immigrant ( cf the Beldjoudi v. France judgment of 26 March 1992, Series A no. 234, p. 28, § 77; the Mehemi v. France judgment of 26 September 1997, Reports 1997-VI, p. 1971, Vol. 5 § 36).  Before leaving Pakistan he had completed 5 years of education in Urdu and after settling in Norway he had returned for visits several times.  He never showed any interest in acquiring Norwegian citizenship.  His wife, who also originated from Pakistan, had spent her first 20 years or so in that country and their children were all of an adaptable age.  They were only slightly integrated into Norwegian society.  In the circumstances, it would not appear to have been unreasonable to expect the first applicant's wife and children to join him in Pakistan.

Furthermore, the Court notes that the first applicant has not only maintained strong links with his country of origin, but appears also to have abused them in the context of a well organised drug trafficking network operated by himself and his compatriots.  He also abused his position in Norway by selling a very large quantity of the highly dangerous drug heroin to his contact in a milieu that had not previously had any problems with this drug.  In short, the first applicant took advantage of his dual links to Pakistan and Norway in order to establish his criminal activity.

In the light of the above elements, the Court considers that in concluding that the public interest in the first applicant's expulsion from Norway to Pakistan was preponderant, the authorities of the respondent State acted within their margin of appreciation.  The Court finds that the interference with the applicants' right to respect for private and family life was supported by relevant and sufficient reasons, was proportionate for the purposes of Article 8 § 2 and could reasonably be viewed as necessary in a democratic society.

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 5 applicant children complained that their father's expulsion amounted to a violation of Article 14 of the Convention, taken in conjunction with Article 8.  Article 14 reads:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

They maintained that the expulsion of their father on the basis that he was a foreigner originating from a country outside the European Union (EU) and the European Economic Area (EEA), constituted an unjustified difference in treatment of them as children, compared with other Norwegian children whose parents were nationals of countries within the EU and the EEA.  The Norwegian practice in this field was generally discriminatory towards innocent children of integrated aliens who are found guilty of a criminal offence.  This practice was not limited to cases of notorious or especially dangerous criminals but extended to cases, such as theirs, where the parent in question was not likely to re-offend and would be of valuable assistance and support to the children if allowed to return to Norway.

The Court recalls that for the purposes of Article 14, a difference in treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.  The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (see, amongst many authorities, the Abdulaziz , Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, pp. 35-36).

The Court notes that no evidence of a differential practice has been submitted to substantiate the applicant children's claim that they have been victims of discriminatory treatment.  Even assuming that a differential practice is applied in this area, the Court reiterates its findings above that, for the purposes of Article 8, the expulsion as such pursued a legitimate aim and did not amount to a disproportionate interference with the applicants’ right to respect for their private and family life.

Moreover, the fact that a Contracting State, in the exercise of its discretion in expulsion matters, gives nationals of certain countries with which it entertains particularly close relations, for instance within the EU and the EEA, more favourable treatment than nationals of other countries, does not of its own give rise to an issue under Article 14 (see the above-mentioned Abdulaziz , Cabales and Balkandali judgment, pp. 39-40, §§ 84-85).  Although the expulsion in question in this case affected the applicant children's enjoyment of their Article 8 rights, the Court is satisfied that the alleged difference in treatment could be regarded as having an objective and reasonable justification falling within the Contracting State’s margin of appreciation.

The Court finds, therefore, that the circumstances of the present case do not disclose any appearance of discrimination contrary to Article 14 of the Convention.

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.

3. The applicants complained of violations of Articles 6 and 13 of the Convention, which guarantee, respectively, the right to a fair hearing in the determination of a criminal charge or civil rights and obligations, and the right to effective remedies for Convention breaches.  They apparently argue that they were not afforded an effective remedy against the first applicant's deportation, because of limitations in the scope of review by the domestic authorities, including the courts.

The Court notes, however, that even assuming that these Convention provisions apply to the present case, the expulsion order was reviewed first at an administrative level and then at 3 judicial levels.  There is nothing to indicate that the review afforded did not comply with the procedural guarantees of the Convention.

It follows that this part of the application must also be rejected as being manifestly ill ‑ founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)