JOINT CONCURRING OPINION OF JUDGES BIANKU AND LEMMENS

1. We agree with the conclusion that there has been no violation of Article 8 of the Convention. We must admit, however, that we have done so with some hesitation. We would like to express the reasons for our hesitation as well as to explain why we finally joined the majority.

2. We first of all agree with the reasons, given by the domestic authorities and highlighted by the majority, which militate in favour of expulsion and a ban on re-entry. In particular, we agree with the characterisation of the applicant as a person who “has primarily lived a life of crime and consistently demonstrated a lack of will to comply with Danish law” (see paragraph 44 of the judgment). We could add that by his conduct he has broken the “social contract” which linked him to Denmark.

We acknowledge that the applicant ’ s identity has been formed in Denmark (compare Benhebba v. France , no. 53441/99, § 33, 10 July 2003, and Emre v. Switzerland , no. 42034/04, § 70, 22 May 2008). We also acknowledge that Denmark as the host country had obligations towards the applicant, as it has vis-à-vis any other person residing on its territory. However, the fact that the applicant spent almost all his life in Denmark does not mean that Denmark bears responsibility for his behaviour. To the contrary, Denmark is fully entitled to take measures in relation to persons who have been convicted of criminal offences, in order to protect society (see Ãœner v. the Netherlands [GC], no. 46410/99, § 56, ECHR 2006 ‑ XII). The applicant, who is responsible for his own acts (see, in the same vein, Balogun v. the United Kingdom , no. 60286/09, § 52, 10 April 2012), should bear the consequences of those acts.

Like the majority, we are of the opinion that “very serious reasons” (see Maslov v. Austria [GC], no. 1638/03, § 75, ECHR 2008) existed, such as to justify the applicant ’ s expulsion.

3. The next question is, as the majority put it, whether or not there were any “other counterbalancing criteria [militating] against imposing that measure, in the light of the Court ’ s case-law” (see paragraph 44 of the judgment).

One of the Üner and Maslov criteria that is relevant in the present case is “the solidity of social, cultural and family ties with the host country and with the country of destination” (see paragraphs 36 and 37 of the judgment, referring to Üner , cited above, § 58, and Maslov , cited above, § 71) [1] .

While the majority underline that although the applicant lived most of his life in the host country, he “must be considered very poorly integrated into Danish society” (see paragraph 44 of the judgment), they do not go into an analysis of the applicant ’ s ties with any country of destination (except for the brief reference to the City Court ’ s finding that “the applicant had no ties to Croatia”, see paragraph 42 of the judgment).

It is the issue of ties with a country of destination that made us hesitate about the outcome to be given to this case.

4. The applicant ’ s expulsion was not initially ordered to any given country. However, when the domestic authorities assessed the applicant ’ s ties with a country of destination, they considered Croatia to be that country.

According to the domestic courts, the applicant “is a national of Croatia” and “he has a Croatian passport”. However, “he has no ties with Croatia, has no family or friends there and does not speak Croatian according to the information provided, but only Roma in addition to Danish” (judgment of the City Court, quoted in paragraph 19 of the present judgment). Both the City Court and the High Court concluded that the applicant had no ties with Croatia (judgment of the City Court, ibid., and judgment of the High Court, quoted in paragraph 20 of the present judgment), except for his nationality.

In general, nationality is the illustration of the existence of a strong tie with the State conferring it. In that sense the International Court of Justice (see the Nottebohm Case (Liechtenstein v. Guatemala) (second phase) , judgment of 6 April 1955, ICJ Reports 1955, p. 4, at p. 23; and for a reference to this statement in the Court ’ s case-law, see Petropavlovskis v. Latvia , no. 44230/06, § 80, 13 January 2015) has described nationality as follows:

“a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.”

Obviously, this description does not fit the present applicant ’ s situation. In practice, as acknowledged by the domestic courts, there are “no ties” with Croatia. It therefore does not seem very probable that the applicant will continue his life in Croatia, a country of which he does not even speak the language.

It seems more probable that the applicant will try to stay in a country near to Denmark, so as to be closer to the country where he developed his relationships with his family and others. It would seem that this probability finds some confirmation in the fact that he has already re-entered Denmark shortly after his expulsion (see paragraph 24 of the judgment). We would be surprised if this would be his last attempt to return, given the existence of ties with Denmark and the inexistence of ties with any other country.

Whatever the country or countries of destination, the fact is that Denmark has expelled the applicant from its territory, with the necessary consequence that he is supposed to stay in another country.

5. If Denmark is not responsible for the applicant ’ s acts, even if he lived there for nearly his whole life, the same is all the more true for any other State, with which the applicant would have no ties at all. Thus the question seems to arise whether the expulsion is compatible with Denmark ’ s international obligations. That is to say, can other States be made to bear the consequences of Denmark ’ s reaction to things that happened in Denmark?

This question has been raised in dissenting opinions in some of the older cases concerning the expulsion of settled migrants. We limit ourselves to quoting two of them.

The concurring opinion of H.G. Schermers, joined by G.H. Thune, in Beldjoudi v. France (6 September 1990, opinion of the Commission, Series A no. 234-A, at pp. 48-49) read as follows:

“From the point of view of international relations, it is also difficult to accept that Algeria should take care of, assist and promote the social reintegration of a criminal who has never lived in its territory. If there is one country responsible for the upbringing and the criminal behaviour of the first applicant, that country must be considered to be France rather than Algeria. Though not legally, it is in any case morally wrong to send back to Algeria those of the many immigrants who become criminals, while allowing those who contribute to the prosperity of the country to remain in France. In my view, it would be more just for France to keep both the good and the bad immigrants”.

The dissenting opinion of Judge Morenilla in Boujlifa v. France (21 October 1997, Reports of Judgments and Decisions 1997 ‑ VI, at p. 2266) expressed the following view:

“Lastly, it is unjust for the country which has to take in the deported alien, which is not responsible for its national ’ s antisocial behaviour.”

While we do share the concerns expressed by these former colleagues, in the end we do not think that they should preclude us from joining the majority in the present case. Indeed, as can be deduced from the statement of H.G. Schermers, the argument of the third States being confronted with Denmark ’ s reaction to its internal problems is more a moral than a legal argument, and it has more to do with international relations than with international law.

Ultimately it is a matter of policy. As a matter of international law, Denmark is entitled to adopt the policy it sees fit to adopt (see paragraph 33 of the judgment). Whether that policy is “good” or “bad” is not our Court ’ s business. We do not have to pass judgment on the policy as such (compare Beldjoudi , opinion of the Commission, cited above, § 63). Our review is limited to the legal question whether the decision taken is compatible with Article 8 of the Convention.

And that is where our involvement in the case ends.

[1] . See also, in the context of the European Union , among others, the judgment of the Court of Justice of the European Union of 22 May 2012 in P. I. v. Oberbürgermeisterin der Stadt Remscheid ( C ‑ 348/09, EU:C:2012:300 , paragraph 34 ) and the references to the relevant recitals and Articles of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States .