Information Note on the Court’s case-law 196

May 2016

Kolonja v. Greece - 49441/12

Judgment 19.5.2016 [Section I]

Article 8

Article 8-1

Respect for family life

Permanent exclusion order against settled migrant resulting in separation from wife and children: violation

Facts – The applicant was an Albanian national who had been living and working in Greece since 1989. He was married to a Greek national, with whom h e had two children, also Greek nationals. His three brothers also lived in Greece. In 1999 the applicant was sentenced to seven years’ imprisonment for purchasing drugs, and an order permanently excluding him from Greek territory was also issued. After bei ng released on parole, he was deported to Albania. In 2007 he returned to Greece illegally. In 2011 he was arrested with a view to his deportation to Albania, pursuant to the order made in 1999. The applicant lodged several appeals from 2011 onwards. He wa s removed to Albania in 2012. His requests to be allowed to return to Greece were unsuccessful.

Law – Article 8: The permanent ban on the applicant’s return to Greece amounted to an interference with his right to respect for his family life. It was in ac cordance with the law and pursued the legitimate aims of ensuring public safety and preventing disorder or crime.

The applicant was considered by the Court as a “settled migrant” in view of his origins, the special status granted by Greece to Albanian nati onals of Greek origin and his long-term residence and life in Greece prior to committing the offence which led to his deportation.

In assessing the proportionality of the interference, the Court drew on the criteria set out in the Ãœner v. the Netherlands j udgment.

Firstly, the indictments division of the criminal court which released the applicant on parole in 1999 had considered that he had not shown criminal potential and that his deportation, and thus the separation from his family, would cause him, and also his wife and daughter, very serious psychological and financial problems. Thus, this positive development in the applicant’s situation could be taken into consideration when weighing up the interests at stake.

Secondly, on the date he was sent back to Albania in 2012, the applicant had been resident in Greece for a total period of about twenty years, which represented a considerable length of time and was equivalent to almost half his age. Greece had therefore b een the centre of his private and family life for a very long time.

Thirdly, the domestic courts had emphasised the potential breach of the protected right if the impugned measure was enforced. In 2011 a decision by the indictments division noted that, th roughout the duration of his stay in Greece after serving his sentence, the applicant had not infringed the criminal law or engaged in anti-social activities capable of endangering public order. The applicant’s family lived in a stable and enduring manner in a house it owned, the applicant did not pose a danger to public order and was unlikely to abscond, and, if released, would be easy to find. Thus, the applicant’s criminal past should not be a decisive factor in the present case.

Further, in 2012 the ad ministrative court had found that the applicant’s deportation would cause him damage that could not easily be repaired, namely destruction of the family ties that he had developed in Greece to date. Indeed, his wife and one of the children had taken Greek nationality, he lived in a house which was owned by his wife and two brothers, and his parents and his brothers were legally resident in Greek and had been issued with a special residence permit for Albanians of Greek origin. The administrative court had a lso considered that the impugned measure was not justified on compelling grounds in the public interest.

Fourthly, both the applicant’s wife and his two children had Greek nationality. They had spent all their lives in Greece and had no close ties with Alb ania. The applicant’s ties with Greece were thus particularly strong. The lifetime exclusion order was likely to result in his six-year-old son growing up without his father, although the child’s best interests lay in being with both his parents.

In the l ight of the criteria developed in its case-law and of the above factors – especially the permanent nature of the ban on entering Greek territory, the family ties between the applicant and his wife and children, the fact that the applicant had committed onl y one serious offence in 1999 and that his subsequent conduct suggested, even in the opinion of the Greek courts, that he did not have a propensity to commit unlawful acts, the total length of the applicant’s stay in Greece, the Greek nationality of member s of his family, the age of the applicant’s second child, and the latter’s interests and well-being – a fair balance had not been struck in the present case.

Conclusion : violation (unanimously).

Article 41: EUR 3,500 in respect of non-pecuniary damage.

(see Ãœner v. the Netherlands [GC], no. 46410/99, 18 October 2006, Information Note no. 90 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Cl ick here for the Case-Law Information Notes