CONCURRING OPINION OF JUDGE MARUSTE

While being in agreement with the majority in finding no violation in this case, I would like to highlight the point that an ability to determine what constitutes a crime and what should be the consequences (penalty) is part and parcel of the very sovereignty of the State.

It is widely recognised in the theory and practice of criminal law in European States that the penalty (sanction) for a crime may incorporate several (linked) elements. For example, in addition to deprivation of liberty or a fine (as the main penalty), the sanction may also encompass a ban on exercising certain activities or professions, withdrawal of a licence or licences, confiscation of property, withdrawal of a permanent residence permit, and so on. It is up to the national authorities to determine, in the particular circumstances of their country and the case, what measures are best designed to prevent disorder or crime and protect health, morals, national security or public safety.

The same applies in respect of expulsion as part of a criminal sanction. This practice has also been recognised as permissible by the Court, provided that the measure is prescribed by law, determined by a court and is necessary in a democratic society and proportionate to the aim pursued .

JOINT DISSENTING OPINION OF JUDGES COSTA, ZUPANČIČ AND TÜRMEN

(Translation)

1 . The question whether the expulsion of a foreign national from the territory of a State is in breach of Article 8 of the Convention has been the subject of numerous judgments by the European Court of Human Rights since that in Berrehab nearly twenty years ago [1] .

2 . All those judgments, both before and after the entry into force of Protocol No. 11, were delivered by the Chambers of the Court. The latter, moreover, were often divided, with dissenting opinions on both sides of the argument, quite impassioned in some cases. The Grand Chamber, however, has not had an opportunity since Berrehab to consider the issue. In Maaouia [2] , for instance, it was called upon to rule not on Article 8, but on Article 6 § 1 alone, which, incidentally, it held by fifteen votes to two to be inapplicable [3] .

3 . In the present case the Grand Chamber, breaking new ground, had to determine whether the order excluding a Turkish national from Netherlands territory following a criminal conviction was in breach of Article 8. We might note in passing that this application was perhaps not the most typical candidate for referral following the Chamber judgment. However, in its wisdom, the panel of five judges provided for by Article 43 of the Convention accepted the applicant ’ s request for referral. This implies that the question was a serious one within the meaning of Article 43 and that the present judgment will, or should, establish a precedent.

4 . We respectfully disagree with the findings of the majority of our colleagues, who held that there had been no violation of Article 8.

5 . First of all, in general terms, we believe that foreign nationals – in any case those who, like Mr Üner, have been residing legally in a country – should be granted the same fair treatment and a legal status as close as possible to that accorded to nationals. This objective has been set forth and reiterated in numerous instruments at European level within both the European Union and the Council of Europe, and to some extent at global level.

6 . Hence, the conclusions of the Presidency of the Tampere European Council on 15 and 16 October 1999 stressed the need for approximation of national legislation on the conditions for admission and residence of third ‑ country nationals ; the Presidency added that a third-country national who ha d resided legally in a European Union m ember State for a period of

time to be determined , and who held a long ‑ term residence per mit, should be granted in that m ember State a set of uniform rights which were as near as possible to those enjoyed by EU citizens . This was reaffirmed by the Sevill e European Council of 21 and 22 June 2002, when the Heads of State and Government of the Union expressed their willingness to develop a common policy on the separate but closely related issues of asylum and immigration. They added that the integration of immigrants entail ed on their part both rights and obligations in relation to the fundamental rights recognised within the Union .

7 . The Council of Europe has also had its say. What is more, pa ragraphs 36 to 38 of the judgment cite Committee of Ministers Recommendation Rec(2000)15, Parlia mentary Assembly Recommendation 1504 (2001) and Committee of Ministers Recommendation Rec(2002)4. One has only to read the judgment to realise that these instruments – which admittedly are not binding – emphasise, among other things, the need to protect long-term immigrants against expulsion, to restrict the penalty of expulsion to particularly serious offences affecting State security and to give particular consideration to the interests and well-being of children.

8 . At the global level, need we recall the 1989 United Nations Convention on the Rights of the Child (to which the Netherlands is a party), which articulates the principle of the “best interests of the child” (a principle which can, as in the present case, have a bearing on family life)?

9 . Of course, we are not arguing that all these international instruments – which, moreover, do not all have the same legal force – mean that foreign nationals can never be expelled, as is the case with nationals under Article 3 of Protocol No. 4. That would be ridiculous. But we do believe that Article 8 of the Convention must be construed in the light of these texts. In our view, the judgment does not quite do that, as it does not, we believe, draw the correct inferences from the international instruments which it cites.

10 . Let us now turn from the general to the specific facts of this case. The applicant is not a second-generation immigrant; however, he was only 12 years old when he arrived in the Netherlands in 1981 to join his father, who had already been living there for ten years. The applicant arrived with his mother and his two brothers; it was therefore a case of family reunion. After being issued with a series of one-year renewable residence permits , he obtained a permanent residence permit at the age of 19. Finally, as far back as 1991 – when he was 22 – he started a family in the host country, with a Netherlands national with whom he has had two children, born in 1992 and 1996. His partner and their children all have Netherlands nationality; they have never lived in Turkey , have no links to that country and do not speak the language. Moreover, although their family ties have been strained at times, they have never been severed, not even while the applicant was in prison.

11 . From a criminal-law viewpoint, there is no doubt that the applicant committed serious offences, most notably when, at the age of 24, he committed manslaughter and assault during a fight in a caf é , and was sentenced to seven years ’ imprisonment as a result (see paragraph 18 of the judgment). He was released in early 1998, having served four and a half years in prison.

12 . It was following this criminal conviction that the authorities imposed further penalties on Mr Üner. In 1997 – four years after the crime had been committed (it is not clear why the interval was so long) – his permanent residence permit was withdrawn and an order was issued prohibiting him from re-entering the Netherlands for ten years. On that basis, he was deported to Turkey shortly after his release from prison; he was deported a second time a few months later, having returned illegally to the Netherlands .

13 . In order to assess whether the applicant ’ s right to respect for his private and family life had been violated, the Court applied the “ Boultif criteria” [4] and, in fact, extended them (see paragraph 58 of the judgment). Our own interpretation of the case in the light of these criteria (or “guiding principles”), however, leads us to the opposite conclusion to that reached by the majority.

14 . The nature and seriousness of the offence committed by the applicant were, as we have said, factors contributing to his expulsion (despite the fact that the offence was committed during a fight and did not affect State security, to use the language of the Parliam entary Assembly R ecommendation cited in paragraph 37 of the judgment). On the other hand, the length of the applicant ’ s residence in the Netherlands ( seventeen years prior to his expulsion) militated in his favour. Furthermore, almost five years had passed since the applicant had committed the offence, and his conduct in prison does not appear to have caused any problems. His partner and children, as mentioned, are Netherlands nationals. The couple ’ s relationship had begun seven years before he was expelled and the ties were strong (a stable relationship and two children). It seems clear, too, that the applicant ’ s partner would have faced considerable difficulties had she been forced to move with him to a country which was completely alien to her.

15 . In short, apart from the seriousness of the offence, all the “ Boultif criteria” seem to us to point to a violation of Article 8. Paradoxically, even those added by the judgment in this case (see paragraph 58) tend in the same direction, whether the criterion is the “interests and well-being of the children” (whose paternal grandparents, even, had lived in the Netherlands for a long time), or the “solidity of social, cultural and family ties”. The latter were clearly stronger with the host country (the Netherlands ) than with the country of destination ( Turkey ), which the applicant had left almost twenty years before and with which his partner and children had no links. (In this respect, paragraph 64 of the judgment seems to us to be more than a little contrived, and in any case unconvincing.)

16 . Hence, the only way in which the finding of a non-violation can possibly be justified, when the “ Boultif criteria” – especially in their extended form – are applied, is by lending added weight to the nature and seriousness of the crime. Quite apart from a problem of method (how do we assign relative weight to the various factors on the basis of some ten guiding principles – are we not seeing here the implicit emergence of a method which gives priority to one criterion, relating to the offence, and treats the others as secondary or marginal?), we believe a question of principle to be at stake, on which we should like to conclude.

17 . The principle is that of “double punishment”, or rather the discriminatory punishment imposed on a foreign national in addition to what would have been imposed on a national for the same offence. We do not agree with the assertion in paragraph 5 6 that the applicant ’ s expulsion was to be seen as preventive rather than punitive in nature. Whether the decision is taken by means of an administrative measure, as in this case, or by a criminal court [5] , it is our view that a measure of this kind, which can shatter a life or lives – even where, as in this case, it is valid, at least in theory, for only ten years (quite a long time, incidentally) – constitutes as severe a penalty as a term of imprisonment, if not more severe. This is true even where the prison sentence is longer but is not accompanied by an exclusion order or expulsion. That is why some States do not have penalties of this kind specific to foreign nationals, while others have largely abolished them in recent times (the case of France springs to mind: see the Laws of 26 November 2003 and 24 July 2006).

18 . For these reasons relating to the Court ’ s reasoning (the application of the “ Boultif criteria” to this case) and on a point of principle (our misgivings about any more severe penalty being imposed on a foreign national because he or she has the misfortune to be such), we have been unable to vote with the majority of our colleagues. We truly regret this. True, the Convention is a living instrument which must be interpreted in the light of present-day conditions [6] . But we would have liked to see this dynamic approach to case ‑ law tending towards increased protection for foreign nationals (even criminals) rather than towards increased penalties which target them specifically.

[1] 1. Berrehab v. the Netherlands , 21 June 1988, Series A no. 138.

[2] 2. Maaouia v. France [GC], no. 39652/98, ECHR 2000-X.

[3] 3. Five judges expressed concurring opinions and two expressed dissenting opinions.

[4] 1. See Boultif v. Switzerland , no. 54273/00, ECHR 2001-IX, and in particular § 48.

[5] 1. As in Maaouia , cited above, and referred to in paragraph 56 of the judgment.

[6] 2. See Tyrer v. the United Kingdom , 25 April 1978, § 31, Series A no. 26, and subsequent settled case-law.