SECOND SECTION

Application no. 77036/11 Mahmoud Kalil SALEM against Denmark lodged on 13 December 2011

STATEMENT OF FACTS

The applicant, Mr Mahmoud Kalil Salem, is a stateless Palestinian from Lebanon , who was born in 1969 and lives in Odense . He is represented before the Court by Mr M ichael Juul Eriksen, a lawyer practising in Åbyhøj.

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

The applicant entered Denmark on 12 January 1993 when he was 23 years old and requested asylum. He maintained that he had fought in the war in Lebanon. He had been shot at eighteen times and subjected to torture and deprivation of liberty and had seen his father and brother killed. His request for asylum was refused.

On 17 November 1994 he applied for a residence permit based on his marriage to a Danish national of Lebanese origin. She had been living in Denmark since 1985. His request was granted temporarily, until August 1996. Subsequently it was granted permanently. In 2000 he was also granted asylum status under section 7 of the Aliens Act ( Udlændingloven ).

The couple has eight children, all Danish nationals, who at the relevant time were aged between four and fourteen years old.

The applicant never went to school in Lebanon and he has never had a job, either in Lebanon or in Denmark. In Denmark he received social benefits until 16 November 2004, when he was granted an early retirement pension by the State due to his poor health: he suffered in particular from post-traumatic stress disorder. His wife was granted an early retirement pension due to back problems.

The applicant reads and understands Danish but he cannot read or write the language. He also speaks and understands Arabic, but cannot read or write it. The same applies to his wife. They speak Arabic between themselves and with their children.

The applicant ’ s wife has eighteen siblings living in Denmark.

The applicant has no other family in Denmark. His mother and two sisters live in Lebanon. He also has a sister in Syria.

The applicant has a criminal record which includes, inter alia , a conviction in 2000 for grave disturbance of public order and a suspended sentence of twenty days ’ imprisonment. In 2007 he was convicted of assaulting a public servant and sentenced to three months ’ imprisonment.

On 9 September 2009 the applicant was arrested and detained on remand, charged with , inter alia , various counts of drug trafficking and dealing.

By a judgment of 1 0 June 2010 the City Court in Odense ( retten i Odense ) found him guilty , in part jointly with others , o f offences including extortion, threats, assault, drug trafficking and drug dealing contrary to Article 191 of the Criminal Code with regard to a significant amount of hashish (more than 100 kg in total, in addition to an attempt to import a large supply from Holland) and an attempt to buy 200 g of cocaine, all committed in the period from 2006 until 9 September 2009 .

When sentencing the applicant to five years ’ imprisonment the City Court took into account, in particular, the significant amount of hashish and cocaine; that the latter was a “hard drug”; the huge profit that the applicant had obtained by the resale; the long period concerned; and the applicant ’ s absolute leading role, notably in relation to the drug dealers under him, whom he had subjected to violence, extortion and threats. It was also noted that the applicant, being a member of a gang, had delivered hashish for resale to various towns in the region.

An amount of 404,500 Danish kroner (DKK), equivalent to approximately 54,000 euros (EUR), and gold jewellery found in the applicant ’ s home during a search were confiscated as profit from the crimes. It was noted that the applicant and his wife - who both received State benefits and who, when calculating their expenses, apparently had a deficit in their household budget for 2007, 2008 and 2009 amounting to a total of at least DKK 2.5 million ( approximately EUR 335,600) approximately 54,000 euros - could not substantiate that they had obtained the goods legally. For example, the applicant ’ s wife denied knowledge of a receipt dated 20 October 2008 for 255.6 g of gold jewellery bought in her name in Dubai for DKK 43,000.

Moreover, p ursuant to sections 2 6 and 22 of the Aliens Act, the City Court ordered the applicant ’ s expulsion, suspended and with two years ’ probation. The City Court noted that the seriousness of the crimes spoke heavily for his expulsion without suspension, but having regard to his wife, who stated that she could not follow her husband to Lebanon, and his eight children in the country, the court did not find that there was sufficient basis for an unsuspended expulsion order.

On appeal, by a judgment of 30 March 2011 the conviction was upheld in part by the High Court of Eastern Denmark ( Østre Landsret ) and the sentence was increased to six years ’ imprisonment. By three votes to three, with the more beneficial outcome in the applicant ’ s favour , the expulsion order remained suspended.

The public prosecution appealed to the Supreme Court ( Højesteret ) against the judgment as regards the suspended expulsion order. New evidence was adduced in this respect, notably as regards the applicant ’ s and his wife ’ s ties to Denmark, Lebanon and Syria. They were both heard.

The applicant explained that he had been in Lebanon for thirty days during the summer of 2009. He had no contacts there but his mother and sister. His other sister lived with her husband and their five children in a refugee camp in Syria. He had stayed there for twenty or twenty-two days during the summer of 2007, for fourteen days during the summer of 2008 and for sixteen days in December 2008.

The applicant ’ s wife and children had been to Syria two or three times in 2009 to visit the applicant ’ s sister there. Since the applicant ’ s arrest in September 2009, she and the children had spent one and a half months in Syria in 2010, and two months in 2011. During the spring of 2011 she had gone alone to Syria for seven or ten days because the sister had fallen ill.

During the summer of 2009 the applicant began negotiations to buy an apartment in Syria because his wife and children went there quite often. He also wanted to buy a shop in the same building. Twice he transferred money via Western Union to his sister to buy the apartment, but it was given up when he was arrested.

The applicant ’ s wife stated that she could not follow her husband if he were expelled to Lebanon or Syria. She and the children would not be able to stand living in either of those countries, and the children could not live outside Denmark.

Statements obtained from the Children ’ s Department at the municipality and the children ’ s schools and institutions recounted that several of the eight children had serious problems, including of a psychological and educational nature. Four of the children received special education and several of the children needed extra support and supervision in their schools and institutions. Massive public support measures had been provided due to a significant need to teach them normal social behaviour . Finally, the placement of some of the sons in public care was under consideration.

Pursuant to a police report of 9 August 2011, based on interceptions carried out during the criminal proceedings against the applicant, it was established that in the period from 21 April 2009 to 10 September 2009, thus a period of less than 5 months, there had been nine hundred and sixty ‑ seven calls to and from overseas numbers on the applicant ’ s and his wife ’ s home telephone. These concerned eighty different foreign telephone numbers, including thirty-eight in Lebanon and nine in Syria. To the numbers in Lebanon there were in total four hundred and thirty-three calls and to the numbers in Syria there were three hundred and six calls. The applicant explained in this connection that the calls to Lebanon had mainly been to people from Denmark who had been on vacation in Lebanon and that the calls to Syria had been to his sister. The applicant ’ s wife explained that she often talked to her sister-in-law in Syria. She also had family in Lebanon. Nevertheless she did have difficulties understanding why there had been calls to thirty-eight different numbers in Lebanon.

Pursuant to a police report of 18 August 2011, it appeared that in the period from 18 January 2006 to 15 June 2011 the applicant, his wife and their children had made various transfers of money to Syria and Lebanon. Sixteen of those concerned a total of DKK 71,471 made in the applicant ’ s name. After the applicant ’ s arrest in September 2009, his wife had transferred money to the applicant ’ s sisters in Lebanon and Syria.

In its judgment of 12 October 2011, by a majority of six votes to one, the Supreme Court decided to expel the applicant with a life-long ban on his return.

It observed that the applicant had been convicted of drug trafficking offences under Article 191 of the Penal Code and attempt thereof on five counts for 59.5 kg of hashish for resale (count 53a); 23 kg for resale (count 56); not less than 15 kg for resale (count 58); entering a deal to buy 200 g of cocaine for resale, which failed (count 60); and an attempt to smuggle in a large amount of hashish from Holland, which failed (count 61). He had also been convicted of offences under the Stimulants Act for having possessed and transferred not less than 10.6 kg of hashish, which failed as to 6 kg ( count 59); and for having possessed 1.632 kg of hashish for resale.

In addition he was convicted of coercion by use of violence or threats of violence (counts 54 and 57a); extortion (count 57); theft (count 64); six counts of handling stolen goods (counts 66, 67, 68, 69, 70 and 71); under the Act on Weapons (count 65); and under Article 124 of the Penal Code for having fled as a detainee (count 74).

The Supreme Court went on to analyse the case in the light of the Court ’ s case-law, notably Maslov v. Austria [GC], no. 1638/03, ECHR 2008 and took the following into account.

The applicant was a stateless Palestinian who had entered Denmark in 1993 at the age of 23. He had been sentenced to six years ’ imprisonment for comprehensive and organised resale of large amounts of hashish, for attempting to buy 200 g of cocaine, and for attempting to smuggle in hashish. Moreover, the drug trafficking had taken place over more than two and a half years and the applicant had had a leading and central role.

In addition he had committed coercion by use of violence or threat of violence against his drug dealers to maintain them as sellers and against clients who could not pay for the drugs. He claimed to have been among the top five members of the “Black Ghost” gang in Odense. He had also been convicted of extortion for having demanded so-called “protection ‑ money” for “Black Ghost”. Moreover, he had previously been convicted under Article 119 of the Penal Code for violence against a public servant and sentenced to three months ’ imprisonment.

The Supreme Court also emphasised that although the applicant had been in Denmark since 1993, he was not well integrated into Danish society and he had limited Danish language skills. He had no ties to Denmark via work or education. He had been receiving State early retirement pension since 2004.

The applicant ’ s spouse was a Danish citizen. She was born a Palestinian national and had lived briefly in Lebanon, until she arrived in Denmark at the age of nine. The couple ’ s children, who at the relevant time were between five and sixteen years old, were also Danish citizens. They were born in Denmark and went to school and institutions in the country.

The applicant and his family spoke Arabic.

The Supreme Court further noted that the applicant still had ties to Lebanon, where his mother and sister lived and where the applicant had lived until he entered Denmark at the age of 23. He also had ties to Syria, where a sister and her family lived, and where the applicant stayed for three weeks in 2007, for four weeks in 2008, and in 2009. Before his arrest, the applicant had set about buying an apartment in Syria for the family to use during stays there.

The applicant ’ s spouse had family in Lebanon. Moreover, she had regular contact with the applicant ’ s sister and family in Syria, and she had spent several vacations there, for instance in 2008 and 2009 as well as one and a half months in 2010 and two months in 2011. She had eighteen siblings in Denmark. She had stated that she would not follow the applicant if he were deported from Denmark to Lebanon or Syria, and that the children would not live outside Denmark.

The minority of one judge found that the fact that the applicant had eight minor children spoke against making the expulsion order unsuspended. She thus voted to confirm the High Court ’ s judgment.

COMPLAINT

The applicant complains that it would be in breach of Article 8 of the Convention to expel him from Denmark as he would be separated from his wife and eight children.

QUESTION TO THE PARTIES

Would it be in breach of Article 8 of the Convention to expel the applicant from Denmark?