Case law on Article 8 of the European Convention of Human Rights

1
Marianne Bruins, Pieter Boeles
Case law on Article 8 of the European Convention of
Human Rights
A survey
Institute of Immigration Law, Leiden
November 2006
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Introduction
In this survey, we present, in a succinct manner and without pretending completeness,
a chronological overview of judgments and decisions of the European Court of
Human Rights, classified according to 9 categories. By dividing the cases into
categories and by keeping the descriptions of the decisions and judgments short, we
hope to facilitate quick access for the readers to the relevant case-law. It goes without
saying that reading of the full texts of the judgments and decisions remains necessary.
Hereunder we will give a brief explanation of the categories. We limited ourselves to
judgments and decisions in family reunion matters or with immigration aspects. The
more general application of Article 8 ECHR, however important, remains outside the
scope of this paper. By way of exception to our focus on Article 8, we have added
three recent Article 3 cases, as a last category, because of their implications for family
life.
Categories:
1. The concept of “family life” (p. 5)
The concept of family life is essentially a question of fact depending upon the
reality in practice of close personal ties. Nevertheless, it follows from the concept
of family on which Article 8 is based that a child born of a marital union is ipso
jure part of that relationship; hence, from the moment of the child's birth and by
the very fact of it, there exists between him and his parents a bond amounting to
“family life” which subsequent events cannot break save in exceptional
circumstances.
Insofar as relations in a couple are concerned, “family life” encompasses families
based on marriage and also de facto relationships. When deciding whether a
relationship can be said to amount to “family life”, a number of factors may be
relevant, including whether the couple live together, the length of their
relationship and whether they have demonstrated their commitment to each other
by having children together or by any other means.
2. The concept of “private life” (p. 8)
In his dissenting opinions in the cases Beldjoudi and Boughanemi, judge Martens
has advocated that expulsion of integrated aliens be considered an interference in
the private life of these persons. Since the Boughanemi judgment, the Court has
consistently assessed whether there was an interference in both private and family
life. In the course of time, the concept of “private life” has been applied by the
court in other contexts.
3. Termination of lawful residence after divorce or separation when a child is
involved (p. 12)
When there was lawful residence on the basis of a residence permit, which is
terminated because of divorce or separation, the person involved may successfully
invoke Article 8 for continued lawful residence enabling him to stay in the same
country as the child(ren). However, Article 8 is not very helpful when the lawful
residence was of a provisory character.
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4. Termination of lawful residence on grounds of public order
4a First generation immigrants (p. 15)
4b Second generation immigrants or persons to be treated similarly (p. 22)
When an immigrant loses his or her right to legal residence on grounds of
criminal behaviour, the Court balances the interests regarding the private and
family life involved against the interests of the expelling state.
In cases of second generation immigrants, or juvenile delinquents who are in a
similar position, the Court initially showed a fairly liberal approach (like in the
case of Moustaquim) which gradually became more restrictive.
The leading judgment for cases of first generation immigrants is the Boultif
judgment. It was the first case in which the court started to give more weight to
the problems of nationals of the host state caused by expulsion of their spouse or
parent. Here again, a tendency to become more restrictive can be seen. The Üner
judgment of the Grand Chamber appears to be less liberal than the Boultif
judgment. However, I the same judgment of the Grand Chamber, the Boultif
criteria have been extended with two more criteria.
In second generation cases, the Boultif-criteria are applied when there is an
actual relationship with a spouse, partner or children. If not, the case is tested
against only three of these criteria (Mokrani)
5. State obligations to grant a right to legal residence for reasons of family
reunification (p. 31)
Though the Court does not derive a general right to family reunification from
Article 8, it has formulated some criteria for assessing whether there is an
obligation for the host state to allow a family member to join the family already
residing there. These criteria vary from very strict (like in the cases of Gül and
Ahmut) to more lenient (like in the cases of Şen and Tuquabo-Tekle).
From the Cruz Varas case it becomes clear that there is normally no issue under
Article 8 when no one of the family members has legal residence in the host state.
The Solomon decision makes clear that a relationship, which was started when the
residence situation was precarious, normally does not justify an expectation that
Article 8 will offer protection against expulsion. An exception to this point of
departure was made in the case of Rodrigues da Silva and Hoogkamer. Here, the
interests of a child played a mayor role.
6. Procedural protection implied in Article 8 ( p. 39)
The requirement in Article 8 (2) that the interference must be in accordance with
law, implies that there must be procedural safeguards against arbitrariness.
7. Means of subsistence (p. 41)
Till the decision of 20 October 2005, published hereunder, the Court has never
expressed itself on the question as to whether it is reasonable to make the right to
family reunification dependent on conditions, like the requirement of having
sufficient means of subsistence. In the three cases, where a state obligation to
accept a right to legal residence for purposes of family reunification was
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established (Şen, Tuquabo-Tekle and Rodriges da Silva/Hoogkamer) the Court did
not pay any attention to that issue apart from its very short consideration in the
Şen judgment, that it was not relevant whether the perents had taken financial
responsibility for their daughter left behind in Turkey: “Il en va de même de la
circonstance que les requérants n’ont pas pu établir avoir participé
financièrement à la prise en charge de leur fille” (para. 40).
From the Gül judgment, it could have been deduced that an obligation for the host
state to admit family reunification on its soil would exist whenever there are,
objectively and strictly speaking, obstacles standing in the way of enjoying family
life elsewhere. In the case of Haydarie, the applicants had argued that there may
be a situation in which the Netherlands would be the only place where family life
would be possible. The Court, however, does not explicitly deal with this aspect.
8. Other interesting applications of Article 8 (p. 43)
In the Niedzwiecki judgment, the Court brought the entitlement to child benefits
under the scope of Article 8, where it could also have been considered an issue of
the right to property under Article 1 First Protocol.
In the Iletmiş judgment, the Court brought a right to freedom of movement “droit
de libre circulation”, as laid down in the Fourth Protocol, under the aegis of
Article 8 as well. The facts of the case were quite similar to the circumstances of
Riener v. Bulgary, 23 May 2006 (46343/99).
9. Family life implications of Article 3 (p. 44)
In three recent cases, the Court has stressed the impact of treatment prohibited by
Article 3 on the family of afflicted persons, by considering this article violated not
only with regard to the person or persons directly affected, but also with regard to
their family.
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1.
The concept of “family life”
The concept of family life is essentially a question of fact depending upon the
reality in practice of close personal ties. Nevertheless, it follows from the
concept of family on which Article 8 is based that a child born of a marital
union is ipso jure part of that relationship; hence, from the moment of the
child's birth and by the very fact of it, there exists between him and his parents
a bond amounting to “family life” which subsequent events cannot break save
in exceptional circumstances.
Insofar as relations in a couple are concerned, “family life” encompasses
families based on marriage and also de facto relationships. When deciding
whether a relationship can be said to amount to “family life”, a number of
factors may be relevant, including whether the couple live together, the length
of their relationship and whether they have demonstrated their commitment to
each other by having children together or by any other means.
9214/80-9473/81-9474/81 Abdulaziz Abdulaziz, Cabales, and Balkandali v. United
Kingdom, 28 May 1985
Three husbands wanting to join three women legally residing in the UK are refused
lawful residence. Discrimination on grounds of sex, no violation of article 8 by itself.
“Whatever else the word "family" may mean, it must at any rate include the
relationship that arises from a lawful and genuine marriage,…, even if a family life of
the kind referred to by the Government has not yet been fully established. Those
marriages must be considered sufficient to attract such respect as may be due under
Article 8”.
“Furthermore, the expression "family life", in the case of a married couple, normally
comprises cohabitation. The latter proposition is reinforced by the existence of Article
12, for it is scarcely conceivable that the right to found a family should not encompass
the right to live together. (para 62)
“The Court does not consider that it has to resolve the difference of opinion that has
arisen concerning the effect of Philippine law. Mr. and Mrs. Cabales had gone
through a ceremony of marriage (see paragraph 45 above) and the evidence before
the Court confirms that they believed themselves to be married and that they
genuinely wished to cohabit and lead a normal family life. And indeed they
subsequently did so. In the circumstances, the committed relationship thus
established was sufficient to attract the application of Article 8.” (para 63)
3/1987/126/177 Berrehab v the Netherlands, 21 June 1988
Moroccan man wishing to stay in the Netherlands after divorce from his Netherlands
wife because he wanted to keep in contact with the little daughter born of this
marriage. Violation of Article 8.
“The applicants asserted that the applicability of Article 8(art. 8) in respect of the
words "right to respect for ... private and family life" did not presuppose permanent
cohabitation. The exercise of a father's right of access to his child and his contributing
to the cost of education were also factors sufficient to constitute family life. The
Government challenged that analysis, whereas the Commission agreed with it.”(para
20)
“The Court likewise does not see cohabitation as a sine qua non of family life
between parents and minor children. It has held that the relationship created between
the spouses by a lawful and genuine marriage - such as that contracted by Mr. and
Mrs. Berrehab - has to be regarded as "family life" (see the Abdulaziz, Cabales and
Balkandali judgment of 28 May 1985, Series A no. 94, p. 32, § 62). It follows from the
concept of family on which Article 8 (art. 8)is based that a child born of such a union
is ipso jure part of that relationship; hence, from the moment of the child's birth and by
the very fact of it, there exists between him and his parents a bond amounting to
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"family life", even if the parents are not then living together. Subsequent events, of
course, may break that tie, but this was not so in the instant case. Certainly Mr.
Berrehab and Mrs. Koster, who had divorced, were no longer living together at the
time of Rebecca's birth and did not resume cohabitation afterwards. That does not
alter the fact that, until his expulsion from the Netherlands, Mr. Berrehab saw his
daughter four times a week for several hours at a time; the frequency and regularity
of his meetings with her (see paragraph 9 in fine above) prove that he valued them
very greatly. It cannot therefore be maintained that the ties of "family life" between
them had been broken. “(para 21)
12313/86 Moustaquim v. Belgium 18 February 1991
Juvenile delinquent, deportation order at the age of twenty, public order, family life
between grown up children and parents. Violation of article 8.
“Mr Moustaquim lived in Belgium, where his parents and his seven brothers and
sisters also resided. He had never broken off relations with them. The measure
complained of resulted in his being separated from them for more than five years,
although he tried to remain in touch by correspondence. There was accordingly
interference by a public authority with the right to respect for family life guaranteed in
paragraph 1 of Article 8 (art. 8-1).” (para 36)
22070/93 Boughanemi 24 april 1996
Deportation order, threat to public order, ties with Tunesia (home country) still
existing, ties with France not particularly strong, not disproportionate to legitimate
aims, no violation of article 8. The bond between father and child can only be broken
in exceptional circumstances, which does not entail recognizing the child only after
ten months.
“The concept of family life on which Article 8 (art. 8) is based embraces, even where
there is no cohabitation, the tie between a parent and his or her child, regardless of
whether or not the latter is legitimate.” (para 35)
21794/93 C. v. Belgium 7 August 1996
Deportation order, drug related offences and conspiracy, not disproportionate to
legitimate aim, no violation of article 8. Elaborating on the exceptional circumstances
which may terminate family life between a child and his parents, the Court states:
“In the present case the mere fact that the applicant was imprisoned and
subsequently deported or that his son was then taken in by Mr C.'s sister in the
Grand Duchy of Luxembourg, which borders on Belgium, do not constitute
such circumstances.’ (para 25)
19465/92 Mehemi v. France 26 September 1997
Permanent exclusion order, drug related offences, young children, the court
acknowledges family life irrespective of the fact that there is no actual cohabitation
because the applicant has been expelled, violation of art. 8.
47390/99 Javeed v. the Netherlands, 3 July 2001
British national of Pakistani origin, family life between applicant and her brother and
his children, further elements of dependency involving more than the normal
emotional ties required to fall under protection of article 8, no indication thereof,
manifestly ill-founded, inadmissible.
“However, the Court recalls that relationships between adult relatives do not
necessarily attract the protection of Article 8 without further elements of dependency
involving more than the normal emotional ties (cf. Ezzoudhi v. France, no. 47160/99,
13.2.2001, par. 34).
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The Court notes that in the present case the applicant has left her brother's
household on 13 February 1997 and that, like in the domestic proceedings, her
contention that one of her adult nieces lives with her has remained unsubstantiated.
Having found no indication in the present case of any elements of dependency
involving more than the normal emotional ties between the applicant and her family in
the Netherlands, the Court is of the opinion that the withdrawal of the applicant's
residence permit, which moreover was not granted in order to allow her to enjoy
family life in the Netherlands but on the sole basis of her employment in the
Netherlands, cannot be regarded as an interference with the applicant's rights under
Article 8 of the Convention.”
50963/99 Al-Nashif v Bulgaria, 20 September 2002
Expulsion, threat to national security. The interference with the applicants' family life
cannot be seen as based on legal provisions that meet the Convention requirements of
lawfulness. Violation of article 8. The Court here summarizes its jurisprudence on the
concept of “family life”.
“The existence or non-existence of “family life” is essentially a question of fact
depending upon the reality in practice of close personal ties (see K. and T. v. Finland
[GC], no. 25702/94, ECHR 2001-VII, § 150). Nevertheless, it follows from the concept
of family on which Article 8 is based that a child born of a marital union is ipso jure
part of that relationship; hence, from the moment of the child's birth and by the very
fact of it, there exists between him and his parents a bond amounting to “family life”
which subsequent events cannot break save in exceptional circumstances (see the
Berrehab v. the Netherlands judgment of 21 June 1988, Series A no. 138, p. 14, § 21,
the Hokkanen v. Finland judgment of 23 September 1994, Series A no. 299-A, p. 19,
§ 54, the Gül v. Switzerland judgment of 19 February 1996, Reports 1996, § 32, and
Ciliz v. the Netherlands, no. 29192/95, §§ 59 and 60, ECHR 2000-VIII).
Insofar as relations in a couple are concerned, “family life” encompasses families
based on marriage and also de facto relationships. When deciding whether a
relationship can be said to amount to “family life”, a number of factors may be
relevant, including whether the couple live together, the length of their relationship
and whether they have demonstrated their commitment to each other by having
children together or by any other means (see the Kroon and Others v. the
Netherlands judgment of 27 October 1994, Series A no. 297-C, pp. 55-56, § 30, and
the X, Y and Z v. the United Kingdom judgment of 22 April 1997, Reports 1997-II,
§ 36).” (para 112)
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2.
The concept of “private life”
In his dissenting opinions in the cases Beldjoudi and Boughanemi, judge
Martens has advocated that expulsion of integrated aliens be considered an
interference in the private life of these persons. Since the Boughanemi
judgment, the Court has consistently assessed whether there was an
interference in both private and family life. In the course of time, the concept
of “private life” has been applied by the court in other contexts.
22070/93 Boughanemi 24 april 1996
Second generation. Deportation because of criminal behaviour. No violation of
Article 8.
“Its task consists of ascertaining whether the deportation
in issue struck a fair balance between the relevant interests,
namely the applicant's right to respect for his private and
family life, on the one hand, and the prevention of disorder or
crime, on the other.” (para 42)
Dissenting opinion of judge Martens:
(1) In this case the Court was again confronted with the issue of the expulsion of an
Integrated alien, the applicant having come to France when he was 8 years old and
having lived there since then, like his parents, brothers and sisters, until - after
twenty-two years of residence - he was expelled.
(2) There are several ways of dealing with this issue.
(3) Firstly, of course, there is the approach which the majority of the Court has
followed up to now. Its starting-point is that the Convention does not protect aliens
from expulsion, not even when they are integrated. They may, however, rely on the
Convention to the extent that expulsion constitutes interference with their right to
respect for their family life. If they do so, it is for the Court to assess whether the
interference is justified under Article 8 para. 2 (art. 8-2).
(4) This traditional approach has two obvious disadvantages. Firstly, not every
integrated alien has a family life. Secondly, it leads to a lack of legal certainty.
National administrations and national courts are unable to predict whether
expulsion of an integrated alien will be found acceptable or not. The majority's
case-by-case approach is a lottery for national authorities and a source of
embarrassment for the Court. A source of embarrassment since it obliges the Court
to make well-nigh impossible comparisons between the merits of the case before it
and those which it has already decided. It is - to say the least - far from easy to
compare the cases of Moustaquim v. Belgium (judgment of 18 February 1991,
Series A no. 193), Beldjoudi v. France (judgment of 26 March 1992, Series A no.
234-A), Nasri v. France (judgment of 13 July 1995, Series A no. 320-B) and
Boughanemi v. France. Should one just make a comparison based on the number
of convictions and the severity of sentences or should one also take into account
personal circumstances? The majority has, obviously, opted for the latter approach
1
and has felt able to make the comparison , but - with due respect - I cannot help
feeling that the outcome is necessarily tainted with arbitrariness.
(5) The first disadvantage of the majority approach is easily mended by accepting
that expulsion of integrated aliens at any rate constitutes interference with their
private life. I argued in favour of that approach in my concurring opinion in
Beldjoudi 2 . This approach has, moreover, been advocated by Judges De Meyer 3 ,
Morenilla 4 and Wildhaber 5 . In my opinion the Court would already considerably
1
See paragraph 44 of the Court's judgment.
Series A no. 234-A, pp. 37 et seq.
3
Series A no. 234-A, p. 35.
4
Series A no. 320-B, p. 31.
5
Series A no. 320-B, p. 32.
2
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improve its doctrine if it accepted this approach. I very much hope that the wording
of paragraph 42 of the Court's judgment - where it refers to "the applicant's right to
respect for his private and family life" - shows the Court's willingness to do so.
44599/98 Bensaid v UK, 6 February 2001
Expulsion challenged for medical reasons, schizophrenia, private life, no violation of
article 8.
“Not every act or measure which adversely affects moral or physical integrity will
interfere with the right to respect to private life guaranteed by Article 8. However, the
Court's case-law does not exclude that treatment which does not reach the severity of
Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where
there are sufficiently adverse effects on physical and moral integrity (see CostelloRoberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, pp.
60-61, § 36).(para 46)
“Private life” is a broad term not susceptible to exhaustive definition. The Court has
already held that elements such as gender identification, name and sexual orientation
and sexual life are important elements of the personal sphere protected by Article 8.
Mental health must also be regarded as a crucial part of private life associated with
the aspect of moral integrity. Article 8 protects a right to identity and personal
development, and the right to establish and develop relationships with other human
beings and the outside world. The preservation of mental stability is in that context an
indispensable precondition to effective enjoyment of the right to respect for private
life.” (para 47)
48321/99 Slivenko v. Latvia, 9 October 2003
Deportation order of mother and daughter based on 1994 treaty requiring the
withdrawal of Russian troops and their families from Latvia, partly admissible,
interference with private life and home, violation of article 8 of the convention.
“The Court further observes that the case-law has consistently treated the expulsion
of long-term residents under the head of “private life” as well as that of “family life”,
some importance being attached in this context to the degree of social integration of
the persons concerned (see, for example, Dalia v. France, judgment of 19 February
1998, Reports 1998-I, pp. 88-89, §§ 42-45). Moreover, the Court has recognised that
Article 8 applies to the exclusion of displaced persons from their homes (see Cyprus
v. Turkey [GC], no. 25781/94, § 175, ECHR 2001-IV). (para 95)
As regards the facts of the present case, the first applicant arrived in Latvia in 1959,
when she was only one month old. Until 1999, by which time she was 40 years of
age, she continued to live in Latvia. She attended school there, found employment
and married. Her daughter, the second applicant, was born in Latvia in 1981 and lived
there until the age of 18, when she was compelled to leave the country together with
her mother, having just completed her secondary education (see paragraphs 16 and
46 above). It is undisputed that the applicants left Latvia against their own will, as a
result of the unsuccessful outcome of the proceedings concerning the legality of their
stay in Latvia. They were thus removed from the country where they had developed,
uninterruptedly since birth, the network of personal, social and economic relations
that make up the private life of every human being. Furthermore, as a result of the
removal, the applicants lost the flat in which they had lived in Riga (see paragraphs
32 and 46 above). In these circumstances, the Court cannot but find that the
applicants' removal from Latvia constituted an interference with their “private life” and
their “home” within the meaning of Article 8 § 1 of the Convention.(para 96)
17341/03 F. v. UK, 22 June 2004
Homosexual asylum seeker from Iran, risking expulsion, claiming that physical and
moral integrity aspect of his right to respect for private life would be violated.
Inadmissible.
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“On a purely pragmatic basis, it cannot be required that an expelling Contracting
State only return an alien to a country which is in full and effective enforcement of all
the rights and freedoms set out in the Convention.”
60654/00 Sisojeva. Latvia, 16 June 2005
Permanent residency in Latvia cancelled because of registry of two of the three
applicants in Russia, interference with private life. Violation of article 8. See also the
Slivenko case, mentioned above.
14492/03 Paramsothy v. The Netherlands, 10 November 2005
National of Sri Lanka, claims to suffer from post-traumatic stress disorder, asylum
application denied, claims expulsion would lead to foreseeable deterioration in his
psychological state, expulsion in accordance with the law, inadmissible.
“The Court has previously held that treatment which does not reach the severity of
Article 3 treatment may nonetheless breach Article 8 in its private-life aspect where
there are sufficiently adverse effects on physical and psychological integrity (see
Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no.
247-C, pp. 60-61, par. 36, and Bensaid, cited above, par. 46). In that context it has
held that mental health must be regarded as a crucial part of private life associated
with the aspect of psychological integrity. Article 8 protects a right to identity and
personal development, and the right to establish and develop relationships with other
human beings and the outside world. The preservation of mental stability is in that
context an indispensable precondition to effective enjoyment of the right to respect for
private life.
In the circumstances of the present case, however, the Court considers that it has not
been established that, as a result of a return to his country of origin, the applicant's
psychological integrity would be substantially affected to a degree falling within the
scope of Article 8 of the Convention.”
51431/99 Mendizabal v France, 17 January 2006
Spanish national, spouse of an ETA-leader who was extradited to Spain. The French
authorities refused to grant her a residence permit during a number of years. Violation
of Article 8.
”Ainsi qu’elle l’a relevé dans la décision sur la recevabilité, la Cour considère que la
présente requête se distingue d’affaires telles que Maaouia c. France (déc.), no
39652/98, CEDH 1999-II) ou Mehemi c. France (no 2) (no 53470/99, CEDH 2003-IV),
en ce que la violation alléguée de l’article 8 provient, non pas de mesures
d’éloignement ou d’expulsion, mais de la situation de précarité et d’incertitude que la
requérante a connue pendant une longue période. (para 70)
La requérante expose en effet – et le Gouvernement ne l’a pas démentie sur ce point
– que la précarité de son statut et l’incertitude sur son sort ont eu d’importantes
conséquences pour elle sur le plan matériel et moral (emplois précaires et
disqualifiés, difficultés sociales et financières, impossibilité faute d’un titre de séjour
de louer un local et d’exercer l’activité professionnelle pour laquelle elle avait
entrepris une formation). (para 71)
La Cour considère que, dans les circonstances de l’espèce, la non délivrance d’un
titre de séjour à la requérante pendant une aussi longue période, alors qu’elle résidait
déjà régulièrement en France depuis plus de quatorze ans, a incontestablement
constitué une ingérence dans sa vie privée et familiale ” (para 72)
58822/00 Shevanova v Latvia, 15 June 2006
Expulsion from Latvia of former USSR national having lived in Latvia for almost
thirty years with her son, administrative summary offence, interference with private
life. Violation of article 8. See also the Slivenko and Sisojeva cases, mentioned above.
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13178/03 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, 12 October 2006
Detention in Belgium and refoulement by Belgium of a 5-years old Congolese girl
wishing to reunite with her mother, having the refugee status in Canada. The girl
traveled with her uncle, having the Dutch nationality, who could not show the Belgian
authorities, when passing them in transit, that he had the necessary documents for the
child. Violation of (amongst others) Article 8.
“La Cour est d’avis que le grief peut également être analysé sous l’angle de la vie
privée de la seconde requérante. Elle a souvent souligné que l’expression de « vie
privée » est large et ne se prête pas à une définition exhaustive. Ainsi, la sphère de la
vie privée, telle que la Cour la conçoit, couvre l’ intégrité physique et morale d’une
personne; la garantie offerte par l’article 8 de la Convention est principalement
destinée à assurer le développement, sans ingérences extérieures, de la personalité
de chaque individu dans les relations avec ses semblables (voir, mutatis mutandis,
Niemietz c. Allemagne, arrêt du 16 décembre 1992, série A no 251-B, p. 33, § 29, et
Botta c. Italie, arrêt du 24 février 1998, Recueil 1998-I, p. 422, § 32, Von Hannover c.
Allemagne, arrêt du 24 juin 2004, no 59320/00, § 50, CEDH 2004).
A cet égard, en l'absence de tout risque que la seconde requérante ne se soustraie
au contrôle des autorités belges, sa détention en centre fermé pour adultes ne
répondait à aucune nécessité. D'autres mesures paraissant conformes à l'intérêt
supérieur de l'enfant garanti par l'article 3 de la Convention sur les droits de l'enfant
étaient en effet envisageables, comme le placement en centre spécialisé ou en
famille d'accueil. Ces mesures avaient d'ailleurs été suggérées par le conseil de la
seconde requérante.“ (para 83)
46410/99 Üner v the Netherlands (Grand Chamber) 18 October 2006
Ten year exclusion order, manslaughter and assault, serious threat to public order and
security. Fair balance. No violation of article 8.
“It observes in this context that not all such migrants, no matter how long they have
been residing in the country from which they are to be expelled, necessarily enjoy
“family life” there within the meaning of Article 8. However, as Article 8 also protects
the right to establish and develop relationships with other human beings and the
outside world (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III)
and can sometimes embrace aspects of an individual's social identity (see Mikulić v.
Croatia, no. 53176/99, § 53, ECHR 2002-I), it must be accepted that the totality of
social ties between settled migrants and the community in which they are living
constitute part of the concept of “private life” within the meaning of Article 8.
Regardless of the existence or otherwise of a “family life”, therefore, the Court
considers that the expulsion of a settled migrant constitutes interference with his or
her right to respect for private life. It will depend on the circumstances of the particular
case whether it is appropriate for the Court to focus on the “family life” rather than the
“private life” aspect.” (para 59)
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3.
Termination of lawful residence after divorce or
separation when a child is involved
When there is lawful residence on the basis of a residence permit, which is terminated
because of divorce or separation, the person involved may successfully invoke Article
8 for continued lawful residence enabling him to stay in the same country as the
child(ren). However, Article 8 is not very helpful when the lawful residence, which is
terminated, is of a provisory character.
10730/84 Berrehab, 21 June 1988
Divorce, child involved, refusing renewal of residence permit father, young child,
distance between The Netherlands and country father (Morocco),
violation of article 8.
“The two disputed measures thus in practice prevented the applicants from
maintaining regular contacts with each other, although such contacts were essential
as the child was very young.” (para 23)
“Having to ascertain whether this latter condition was satisfied in the instant case, the
Court observes, firstly, that its function is not to pass judgment on the Netherlands’
immigration and residence policy as such. It has only to examine the interferences
complained of, and it must do this not solely from the point of view of immigration and
residence, but also with regard to the applicants’ mutual interest in continuing their
relations. As the Netherlands Court of Cassation also noted (…), the legitimate aim
pursued has to be weighed against the seriousness of the interference with the
applicants’ right to respect for their family life.
As to the aim pursued, it must be emphasised that the instant case did not concern
an alien seeking admission to the Netherlands for the first time but a person who had
already lawfully lived there for several years, who had a home and a job there, and
against whom the Government did not claim to have any complaint. Furthermore, Mr.
Berrehab already had real family ties there - he had married a Dutch woman, and a
child had been born of the marriage.
As to the extent of the interference, it is to be noted that there had been very close
ties between Mr. Berrehab and his daughter for several years (see paragraphs 9 and
21 above) and that the refusal of an independent residence permit and the ensuing
expulsion threatened to break those ties. That effect of the interferences in issue was
the more serious as Rebecca needed to remain in contact with her father, seeing
especially that she was very young.
Having regard to these particular circumstances, the Court considers that a proper
balance was not achieved between the interests involved and that there was
therefore a disproportion between the means employed and the legitimate aim
pursued. That being so, the Court cannot consider the disputed measures as being
necessary in a democratic society. It thus concludes that there was a violation of
Article 8.” (para 29)
29192/95 Ciliz v. the Netherlands, 11 July 2000
Separation, mother guardian, refusal of continued residence to father frustrates
examination authorities of feasibility and desirability of fathers access to son.
Violation of article 8.
“In fact, the instant case features both types of obligation: on the one hand, a positive
obligation to ensure that family life between parents and children can continue after
divorce (see, mutatis mutandis, the Keegan judgment cited above, p. 19, § 50), and,
on the other, a negative obligation to refrain from measures which cause family ties to
rupture.(para 62)
13
In the view of the Court, the authorities not only prejudged the outcome of the
proceedings relating to the question of access by expelling the applicant when they
did, but, and more importantly, they denied the applicant all possibility of any
meaningful further involvement in those proceedings for which his availability for trial
meetings in particular was obviously of essential importance. It can, moreover, hardly
be in doubt that when the applicant eventually obtained a visa to return to the
Netherlands for three months in 1999, the mere passage of time had resulted in a de
facto determination of the proceedings for access which he then instituted (see the
W. v. the United Kingdom judgment cited above, p. 29, § 65). The authorities, through
their failure to coordinate the various proceedings touching on the applicant's family
rights, have not, therefore, acted in a manner which has enabled family ties to be
developed (see the Keegan judgment cited above, p. 19, § 50). (para 71)
In sum, the Court considers that the decision-making process concerning both the
question of the applicant's expulsion and the question of access did not afford the
requisite protection of the applicant's interests as safeguarded by Article 8. The
interference with the applicant's right under this provision was, therefore, not
necessary in a democratic society. Accordingly, there has been a breach of that
provision. “(para 72).
61292/00 Useinov v. the Netherlands, 11 April 2006
National of Yugoslav Republic of Macedonia, two children in the Netherlands,
relationship with partner broken, refusal to allow him to live in the Netherlands,
family life started while awaiting outcome of asylum application, inadmissible.
“In the present case it is not in dispute that such ties exist between the applicant and
his children M. and J., whom he has recognised and in whose upbringing he takes an
active part.
Next, the Court observes that the present case concerns the refusal of the domestic
authorities to allow the applicant to reside in the Netherlands. Although he has been
living in that country since 1992, the impugned decision did not constitute an
interference with the applicant’s exercise of the right to respect for his family life in
that a residence permit, entitling him to remain in the Netherlands, was withdrawn.
The question to be examined in the present case is rather whether the Netherlands
authorities were under a duty to allow the applicant to reside in the Netherlands, thus
enabling him to maintain and develop family life in their territory. For this reason the
Court considers that this case is to be seen as one involving an allegation of failure
on the part of the respondent State to comply with a positive obligation (see Ahmut v.
the Netherlands, judgment of 28 November 1996, Reports of Judgments and
Decisions 1996-VI, p. 2031, § 63).
(…)
Turning to the circumstances of the present case, the Court notes that it is the
applicant’s submission that he was allowed to live in the Netherlands pending the
proceedings on his asylum application and his subsequent application for a residence
permit for compelling reasons of a humanitarian nature, i.e. a total period of just over
five years. However, the Court is of the view that this cannot be equated with lawful
stay where the authorities explicitly grant an alien permission to settle in their country.
Therefore, the applicant’s stay in the Netherlands was precarious for most of it, and
illegal for the remainder.
The Court is aware that, where Contracting States tolerate the presence of aliens in
their territory while the latter await a decision on an application for a residence permit,
this enables the persons concerned to take part in the host country’s society and to
form relationships and to create a family there. However, as set out above, this does
not entail that the authorities of the Contracting State involved are, as a result, under
an obligation pursuant to Article 8 of the Convention to allow the alien concerned to
settle in their country. In this context a parallel may be drawn with the situation where
a person who, without complying with the regulations in force, confronts the
authorities of a Contracting State with his or her presence in the country as a fait
accompli. The Court has previously held that, in general, persons in that situation
have no entitlement to expect that a right of residence will be conferred upon them
14
(see Chandra and Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003). In
the present case also, the applicant was never given any assurances that he would
be granted a right of residence by the competent Netherlands authorities and he
could therefore not at any time reasonably expect to be able to continue this family
life in the Netherlands (cf. Bouchelkia v. France, judgment of 29 January 1997,
Reports 1997-I, p. 65, § 53; and Baghli v. France, no. 34374/97, § 48, ECHR 1999VIII).
Furthermore, the Court considers that the present case discloses no exceptional
circumstances. It observes in this context that the applicant first entered the
Netherlands in 1992 at the age of 27. Even though he has now been living in that
country for a considerable time, he must still have links with the FYR of Macedonia,
where he presumably grew up and underwent his schooling. Moreover, the Court has
found no indication that there are any insurmountable obstacles for the applicant’s
partner to settle in the FYR of Macedonia with the children, even though this might
entail a certain social hardship for them. Should she choose not to do so, it is in any
event to be borne in mind that the distance between the Netherlands and the FYR of
Macedonia is not so great as to render contacts between the applicant and his
children virtually impossible.”
15
4.
Termination of lawful residence on grounds of public
order
When an immigrant loses his or her right to legal residence on grounds of criminal
behaviour, the Court balances the interests regarding the private and family life
involved against the interests of the expelling state.
In cases of second generation immigrants, or juvenile delinquents who are in a
similar position, the Court inuitially showed a fairly liberal approach (like in the case
of Moustaquim) which gradually became more restrictive.
The leading judgment in cases of first generation immigrants is the Boultif judgment.
In this case, the Court for the first time started to give more weight to the problems of
nationals of the host state caused by expulsion of their spouse or parent in the Boultif
case. Here again, a tendency to become more restrictive can be seen. The Üner
judgment of the Grand Chamber appears to be less liberal than the Boultif judgment.
However, I the same judgment of the Grand Chamber, the Boultif criteria have been
extended with two more criteria.
In second generation cases, the Boultif-criteria are applied when there is an actual
relationship with a spouse, partner or children. If not, the case is tested against only
three of these criteria (Mokrani).
4a.
First generation immigrants
43218/98 Farah v Sweden, 24 August 1999
Ten year residence ban, drugs-related offences, wife and children followed applicant
to Tunesia, limited duration of residence ban, fair balance, manifestly ill-founded:
inadmissible.
34891/97 Schober v Austria, 9 November 1999
Residence ban on the second applicant after aggravated blackmail and arson,
manifestly ill-founded, inadmissible.
“As to the first applicant’s ties with Austria, the Court notes that she had only entered
Austria in 1993 at the age of twenty. When she married the second applicant in
September 1993 she had not yet obtained a residence permit. She was arrested in
December 1993. Thus, her stay in Austria outside prison was very brief and was
seemingly not based on a valid residence entitlement. As to the offences committed
by her, the Court finds that they are by their very nature serious crimes. Even if the
domestic courts found that the second applicant was the main instigator of these
crimes while the first applicant only played a minor role in contributing to their
commission, they found it necessary to impose a term of imprisonment of
considerable length on her. The Court further notes that the applicants have not
shown that there are obstacles to establishing family life in Slovakia, the first
applicant’s country of origin”.
50259/99 Nwosu, 10 July 2001
Nigerian national, married to a Danish wife, drugs-related crime, inadmissible. The
“Boultif-criteria” are mentioned already here, but with a result which is different from
the Boultif case.
“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 applicant was
convicted, namely for having been in possession of 1,127 kilo of heroin and 200.5
16
grams of cocaine, for the purpose of passing it on. In view of the devastating effects
drugs have on peoples’ lives, the Court understands why the authorities show great
firmness to those who actively contribute to the spread of this scourge (see inter alia
the Dalia v. France judgment of 19 February 1998, Reports 1998-I, p. 92, §54). In the
Court’s view, even if the 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, 1997-I, p. 65, § 51).
The Court agrees with the Government that the applicant has maintained strong links
with his country of origin. As to the applicant’s ties with Denmark, these appear to be
connected mainly to his marriage to a Danish citizen.
As to the question whether the applicant’s wife will be excluded from following the
applicant to Nigeria, the Court is not convinced by the arguments submitted by the
applicant since, as stated above, the Court does not consider that there is evidence in
the case which indicates that the Nigerian authorities are, or will be, informed of the
offences committed in Denmark.
In the light of the above elements, the Court considers that in concluding that the
public interest in the applicant’s expulsion from Denmark to Nigeria was
preponderant, the Danish authorities thoroughly examined and balanced the above
interest and acted within their margin of appreciation. The Court finds that the
interference with the applicant’s 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.”
54273/00 Boultif v. Switzerland, 2 August 2001
Deportation order regarding an Algerian national, married to a Swiss woman, after
robbery, great importance on whether applicant was able to establish family life
elsewhere, no reoffending, premature release from prison. Violation of article 8.
In this case the Court established criteria for examining whether an expulsion measure
can be considered necessary in a democratic society where the main obstacle to
expulsion was that it would entail difficulties for the spouses and children to live
together (now referred to as the Boultif criteria):
“The Court has only a limited number of decided cases where the main obstacle to
expulsion was that it would entail difficulties for the spouses to stay together and, in
particular, for one of them and/or the children to live in the other’s country of origin. It
is therefore called upon to establish guiding principles in order to examine whether
the measure in question was necessary in a democratic society.
In assessing the relevant criteria in such a case, the Court will consider the nature
and seriousness of the offence committed by the applicant; the duration of the
applicant’s stay in the country from which he is going to be expelled; the time which
has elapsed since the commission of the offence and the applicant’s conduct during
that period; the nationalities of the various persons concerned; the applicant’s family
situation, such as the length of the marriage; other factors revealing whether the
couple lead a real and genuine family life; whether the spouse knew about the
offence at the time when he or she entered into a family relationship; and whether
there are children in the marriage and, if so, their age. Not least, the Court will also
consider the seriousness of the difficulties which the spouse would be likely to
encounter in the applicant’s country of origin, although the mere fact that a person
might face certain difficulties in accompanying her or his spouse cannot in itself
preclude expulsion.”(para 48)
56811/00 Amrollahi v Denmark, 11 July 2002
Expulsion, drugs related offences, life long ban, no strong links with country of origin
Iran, wife and children cannot be expected to move to Iran, combined with no
indication of possibility of lawful residence in another country, violation of article 8.
“The applicant's wife, A, is a Danish national. She has never been to Iran, she does
not know Farsi and she is not a Muslim. Besides being married to an Iranian man,
she has no ties with the country. In these circumstances the Court accepts even if it is
17
not impossible for the spouse and the applicant's children to live in Iran that it would,
nevertheless, cause them obvious and serious difficulties. In addition, the Court
recalls that A's daughter from a previous relationship, who has lived with A since her
birth in 1989, refuses to move to Iran. Taking this fact into account as well, A cannot,
in the Court's opinion, be expected to follow the applicant to Iran.” (para 41)
28570/03 Najafi v Sweden, 6 July 2004
Iranian national, deportation order, drugs-related offences, strong links with Iran,
although serious impact on family life, gravity of crimes, inadmissible.
“In July 1984 the applicant married a Swedish citizen, whom he later divorced in
1995. The couple has two sons, now aged 15 and 10 respectively, who are both
Swedish citizens. The applicant has maintained contact with them and – save for a
period of two years between 1997 and 1999 – he continued to meet them also when
he was imprisoned. According to the applicant and his former wife, he has a close
relationship with the children, who remain in Sweden. Also the applicant’s parents
and his three brothers are living in Sweden.
In view of these circumstances, it is clear that the applicant has strong links to
Sweden.
(…)
In determining whether the order for the applicant’s expulsion in the circumstances
struck a fair balance between the relevant interests, the Court is of the opinion that,
while not overlooking the applicant’s long residence in Sweden and the serious
implications for his family life, his repeated criminal behaviour in general and the 1997
conviction for narcotics offences in particular are of such a serious nature that the
expulsion order must be considered to have been justified.”
42620/02Yuusuf v. the Netherlands, 2 December 2004
Somali national, husband and children granted residence permit, hers refused because
of small criminal record (fight in the holding centre, residence permit granted while
case was pending, struck of the list.
14015/02 Haliti v Switzerland, 1 March 2005
National of Serbia-Montenegro, residence ban, manifestly ill-founded, inadmissible.
“Par rapport à la possibilité pour le requérant d'établir une vie familiale en SerbieMonténégro, la Cour estime qu'un retour dans ledit pays serait sans doute
envisageable pour celui-ci, étant donné qu'il s'était souvent rendu au Kosovo, même
avant l'interdiction du territoire prononcée contre lui, et qu'il y maintient toujours des
relations sociales importantes.
Il en est de même pour son épouse, également ressortissante de la SerbieMonténégro, et qui est arrivée en Suisse à l'âge adulte. Sur ce point, la présente
affaire se distingue nettement des affaires comparables, mais dans lesquelles une
intégration dans le pays d'origine de l'épouse de l'intéressé, ressortissante de l'Etat
d'accueil, ne s'avérait qu'à peine envisageable (voir, notamment, les arrêts Boultif c.
Suisse, no 54273/00, § 53, CEDH 2001-IX ; Beldjoudi c. France, arrêt du 26 mars
1992, série A no 234-A, § 78).
Par rapport aux enfants, la Cour note que l'aîné des enfants, né en 1983, est arrivé
en Suisse à l'âge de quatre ans. Il était majeur au moment où l'interdiction du
territoire est devenue définitive, à savoir le 21 février 2003 (arrêt du Tribunal fédéral).
Dès lors, il n'entre pas, en tant que tel, en ligne de compte dans l'appréciation de la
situation familiale du requérant.
Les deux autres enfants sont nés en Suisse, respectivement en 1988 et 1995. Ces
enfants, mineurs (âgés de 15 et 8 ans) au moment de la mesure frappant le
requérant, ont toujours vécu en Suisse, dans l'environnement culturel de ce pays et y
sont scolarisés (voir Berrehab c. Pays-Bas, arrêt du 21 juin 1988, série A no 138, §
29). Certes, l'établissement en Serbie-Monténégro impliquerait pour eux, s'ils optent
effectivement de rentrer au Kosovo, un certain déracinement (critère tiré de l'affaire
Mehemi, précitée, § 36). D'autre part, la Cour ne considère pas insurmontables les
obstacles à leur développement individuel et social au Kosovo, compte tenu du fait
18
qu'ils se trouvent encore à un âge adaptable et que leurs parents y ont gardé des
attaches importantes. De surcroît, elle exprime ses réserves vis-à-vis de l'argument
invoqué par le requérant selon lequel les enfants maîtrisent pas l'albanais. “
30673/04 McCalla v the UK, 31 May 2005
Deportation order against Jamaican national, drugs-related offences, British wife and
child, aware of potential difficulties when marriage took place, strong public interest,
inadmissible.
“The Court notes that the applicant, a Jamaican citizen, came to visit the United
Kingdom on limited leave to remain. He and S. married, aware of the fact that he had
no permanent leave to reside in the United Kingdom. His immigration status was
equally precarious at the time of their son's birth, when he was in prison. The interest
of the applicant remaining with S., J. and R. in the United Kingdom has to be
balanced against the public order interests on account of the nature and the
seriousness of the crimes of which the first applicant was convicted, namely six
offences concerning the supply of crack cocaine. In view of the devastating effects
drugs have on people's lives, the Court understands why the authorities show great
firmness to those who actively contribute to the spread of this scourge (see, among
other authorities, Dalia v. France, cited above, p. 92, § 54, and Amrollahi v. Denmark,
no. 56811/00, § 37, 11 July 2002). The five year prison sentence imposed on the
applicant shows the serious nature and gravity of the crime. It follows that the
expulsion must be considered to have been justified by weighty public order interests.
While it is true that S. and J. have strong ties in the United Kingdom, as
acknowledged by the Adjudicator who considered that they could not reasonably be
expected to emigrate to Jamaica, the Court would note that at the time of the
marriage, when the applicant could not claim to have established any reasonable
expectation of remaining permanently in the United Kingdom, he and S. must be
regarded as aware of the potential difficulties that would arise for S., and in particular
for J. if he proved unable to gain permanent resident status. It was, in other words, a
risk that they took.
Having regard therefore to the strong public interest in this case, the Court finds that
in the circumstances it cannot be considered to have been disproportionate to the
legitimate aims of preventing disorder or crime, and protecting health and morals, to
issue a deportation order against the applicant (see, Hussain and C. v. Norway,
(dec.) no. 36844/97, 4 May 2000, unreported, Najafi v. Sweden, (dec.) no. 28570/03,
6 July 2004, unreported and Hussain Mossi and Others v. Sweden, (dec.) 15017/03,
8 March 2005, unreported)”.
16387/03 Davydov v Estonia, 31 May 2005
Applicant lives since 1994 in Russia, committed several violent crimes while visiting
Estonia, no established strong links with Estonia, appearance of strong links with
Russia and possibility to visit Estonia, no disproportionate interference, inadmissible.
“The Court notes from the outset that the applicant has never resided in the Republic
of Estonia on the basis of a residence permit granted by the Estonian authorities. He
had been living in Estonia from 1978, but had opted for Russian nationality, after he
had failed the Estonian language exam (required for naturalisation) in the beginning
of the 1990s.
Furthermore, the applicant left Estonia in 1994 and was convicted and imprisoned for
offences committed during his subsequent visits to Estonia. His stay in Estonia from
December 1997 to January 2001 involved the serving of a prison sentence. In 2001
the authorities refused his application for a residence permit. The Court finds that
these facts do not demonstrate the applicant's close and confirmed links with Estonia.
The applicant has, on the other hand, maintained close links with his country of origin.
All the applicant's family members are ethnic Russians and Russian nationals; his
son goes to a Russian school in Narva and his parents live in Ivangorod, on the other
side of the river from Narva. As from 1994 the applicant resided and worked there.”
19
46410/99 Üner v. the Netherlands, 5 July 2005 (replaced by a later judgment of the
Grand Chamber of 18 October 2006 in the same case).
50252/99 Sezen v NL, 31 January 2006
Ten year exclusion order, organised crime and drug-related offences, residence permit
lost because marriage was considered broken while applicants were living together
again, Boultif criteria applied, wife and children cannot be expected to follow,
violation of article 8.
“The principal element which strikes the Court in the present case, however, is the
fact that the applicants’ marriage was deemed to have permanently broken down
when the couple had merely ceased cohabiting for some six months in 1995/1996
and despite them making it clear to the authorities of the respondent State that
cohabitation had been resumed and that there was no question of their marriage
having broken down. Dutch law did not permit the first applicant’s residence permit to
be revoked or an exclusion order to be imposed at the time of his conviction, since he
had held a strong residence status at that time (see Yılmaz v. Germany,
no. 52853/99, § 48, 17 April 2003). Yet by ruling – four years after that conviction
(paragraph 44 above) and notwithstanding the fact that a child had been conceived
during the time the spouses were not living together – that the marriage had
permanently broken down, the authorities were able to conclude that the first
applicant had lost his indefinite right to remain and, subsequently, to refuse him
continued residence on the basis of the criminal conviction. By that time the first
applicant had served his sentence and, as illustrated by the fact that he obtained
gainful employment and that a second child was born to him and his wife, had begun
rebuilding his life.”(para 48)
17868/03 Ndangoya v Sweden, 22 June 2006
Tanzanian national, two Swedish children, new relationship with Swedish woman
expulsion, aggravated assault (knowingly contaminating three women with HIV),
applicant alleges he would be prevented from receiving treatment for HIV, fair
balance, inadmissible.
“With respect to the applicant’s new relationship, the Court reiterates that it
commenced at a time when the applicant’s expulsion had already been finally
ordered. Consequently, they could not reasonably have expected that they would be
able to continue that relationship in Sweden. Furthermore, no medical evidence has
been presented which would show that the applicant’s partner would be unable to
follow him to Tanzania. In the Court’s view, this situation cannot therefore be
decisive.
However, the Court acknowledges that the applicant’s expulsion would greatly affect
his relationship with his children. The applicant’s former wife, the mother of the
children, cannot be expected to settle in Tanzania and it might be difficult,
economically and otherwise, for the children to make frequent visits to Tanzania.
Nevertheless, the Court observes that the applicant met his former wife in Tanzania,
where she was working at the time, and that the couple lived together for some time
and married in that country. Moreover, the older child lived in Tanzania between
October 1993 and January 1996 and both children apparently speak Swahili. The
applicant’s former wife and the children have also maintained contact with relatives of
the applicant in Tanzania. Thus, to the extent their financial situation would allow it,
there does not seem to be any obstacle for the children, accompanied by their
mother, to pay the applicant visits in that country. It appears clear, however, that
regular contact between the applicant and his children would have to be limited to
letters and telephone calls and there is thus no doubt that his expulsion would have
serious implications for his family life.
These implications will have to be balanced against the crimes of which the applicant
has been convicted. In this respect, the Court notes that the applicant has been
convicted on two occasions, on 30 December 1998 of making unlawful threats and of
carrying knives in a public place and by the Court of Appeal’s judgment of 2
20
December 1999 of two counts of aggravated assault and one count of attempted
aggravated assault. The second conviction is of the utmost gravity, involving
unprotected sexual contacts with three women without disclosing to them that he
carried the HIV virus. As a consequence of the applicant’s conduct, two of the victims
have been infected with the virus. In its judgment, the Court of Appeal considered that
the applicant had acted with exceptional ruthlessness and indifference towards his
victims and concluded that that he would not have refrained from having sexual
intercourse with them even if he had known that the disease would be transmitted.
While the court considered that the crimes justified a seven-year prison sentence, it
took account of the inconvenience caused by the expulsion order and sentenced the
applicant to six years’ imprisonment.
Further account will have to be taken of the risk that the applicant, upon release from
detention, would relapse into the same type of criminal behaviour and transmit the
HIV virus to further victims. The Court of Appeal found that there was a significant risk
of such behaviour whereas the physician treating the applicant, Dr Lindbäck, later
concluded that that risk was extremely small. Other evidence presented by the
applicant has attested to the improvement of the applicant’s situation and his
increased understanding of his illness and his previous actions. Although, as adduced
by the applicant, the later evaluations were made by professionals trained to assess
the risk in question, it is true, as submitted by the Government, that they have all
been made while the applicant was in detention. The Court therefore finds it difficult
to assess whether there would be a risk, upon the applicant’s release, of his engaging
in further conduct that could cause the spreading of his HIV infection.
However, even assuming that the applicant would refrain from further hazardous
behaviour, the Court is of the opinion that the crimes of which he was convicted by
the Court of Appeal’s judgment of 2 December 1999 are of such a serious nature that
the order for his expulsion must be considered to have been justified and that,
notwithstanding the resulting implications for his relationship with his children, it
cannot be regarded as disproportionate to the legitimate aim of preventing disorder
and crime. In other words, the expulsion order struck a fair balance between the
interests involved and the applicant’s expulsion to Tanzania, if effected, may
reasonably be considered “necessary” within the meaning of Article 8 § 2 of the
Convention.”
46410/99 Üner v the Netherlands (Grand Chamber) 18 October 2006
Ten year exclusion order, manslaughter and assault, serious threat to public order and
security. No violation of article 8.
Extension of the Boultif criteria:
“The Court would wish to make explicit two criteria which may already be implicit in
those identified in the Boultif judgment:
- the best interests and well-being of the children, in particular the seriousness of the
difficulties which any children of the applicant are likely to encounter in the country to
which the applicant is to be expelled; and
- the solidity of social, cultural and family ties with the host country and with the
country of destination. “ (para 58)
Balancing the interests:
“The Court considers at the outset that the applicant lived for a considerable length of
time in the Netherlands, the country that he moved to at the age of twelve together
with his mother and brothers in order to join his father, and where he held a
permanent residence status. Moreover, he subsequently went on to found a family
there. In these circumstances, the Court does not doubt that the applicant had strong
ties with the Netherlands. That said, it cannot overlook the fact that the applicant lived
with his partner and first-born son for a relatively short period only, that he saw fit to
put an end to the co-habitation, and that he never lived together with his second son.
As the Chamber put it in paragraph 46 of its judgment, “... the disruption of their
family life would not have the same impact as it would have had if they had been
living together as a family for a much longer time.” Moreover, while it is true that the
applicant came to the Netherlands at a relatively young age, the Court is not prepared
to accept that he had spent so little time in Turkey that, at the time he was returned to
21
that country, he no longer had any social or cultural (including linguistic) ties with
Turkish society.
As to the criminal conviction which led to the impugned measures, the Court is of the
view that the offences of manslaughter and assault committed by the applicant were
of a very serious nature. While the applicant claimed that he had acted in selfdefence – a claim that was in any event rejected by the trial courts – (see paragraphs
44 and 50 above), the fact remained that he had two loaded guns on his person.
Taking his previous convictions into account (see paragraphs 14 and 16 above), the
Court finds that the applicant may be said to have displayed criminal propensities.
Having regard to Dutch law and practice relating to early release (see paragraph 34
above), the Court is, furthermore, not inclined to attach particular weight to the fact
that the applicant was released after having served two-thirds of his sentence.
The Court concurs with the Chamber in its finding that at the time the exclusion order
became final, the applicant's children were still very young – six and one and a half
years old respectively – and thus of an adaptable age (see paragraph 46 of the
Chamber judgment). Given that they have Dutch nationality, they would – if they
followed their father to Turkey – be able to return to the Netherlands regularly to visit
other family members residing there.
Even though it would not wish to underestimate the practical difficulties entailed for
his Dutch partner in following the applicant to Turkey, the Court considers that in the
particular circumstances of the case, the family's interests were outweighed by the
other considerations set out above (see paragraphs 62 and 63).
The Court appreciates that the exclusion order imposed on the applicant has even
more far-reaching consequences than the withdrawal of his permanent residence
permit, as it renders even short visits to the Netherlands impossible for as long as the
order is in place. However, having regard to the nature and the seriousness of the
offences committed by the applicant, and bearing in mind that the exclusion order is
limited to ten years, the Court cannot find that the respondent State assigned too
much weight to its own interests when it decided to impose that measure. In this
context, the Court notes that the applicant, provided he complied with a number of
requirements, would be able to return to the Netherlands once the exclusion order
had been lifted (see paragraphs 32 and 51 above).
Finally, the Court notes that the applicant also complained of the fact that after his
conviction a period of three years elapsed before the authorities decided to withdraw
his residence permit and impose an exclusion order. The Government have explained
this delay with reference to domestic law and practice in this area. The Court
considers that it does not have to take a stance on this issue, but notes that the
applicant was still serving his sentence when the impugned measures were taken (cf.
Sezen v. the Netherlands, no. 50252/99, §§ 44 and 48, 31 January 2006). Moreover,
in adopting the latter measures, the authorities addressed all relevant considerations
militating for or against the denial of residence and use of an exclusion order.
In the light of the above, the Court finds that a fair balance was struck in this case in
that the applicant's expulsion and exclusion from the Netherlands were proportionate
to the aims pursued and therefore necessary in a democratic society.” (para 62 – 67)
22
4b
Second generation immigrants and persons to be treated
similarly
12313/86 Moustaquim v. Belgium 18 February 1991
Juvenile delinquent, deportation order at the age of twenty, public order, family life
between grown up children and parents. Violation of article 8.
“Mr Moustaquim’s alleged offences in Belgium have a number of special features.
They all go back to when the applicant was an adolescent (see paragraphs 10-15
above). Furthermore, proceedings were brought in the criminal courts in respect of
only 26 of them, which were spread over a fairly short period - about eleven months -,
and on appeal the Liège Court of Appeal acquitted Mr Moustaquim on 4 charges and
convicted him on the other 22. The latest offence of which he was convicted dated
from 21 December 1980. There was thus a relatively long interval between then and
the deportation order of 28 February 1984. During that period the applicant was in
detention for some sixteen months but at liberty for nearly twenty-three months.
Moreover, at the time the deportation order was made, all the applicant’s close
relatives - his parents and his brothers and sisters - had been living in Liège for a long
while; one of the older children had acquired Belgian nationality and the three
youngest had been born in Belgium.
Mr Moustaquim himself was less than two years old when he arrived in Belgium.
From that time on he had lived there for about twenty years with his family or not far
away from them. He had returned to Morocco only twice, for holidays. He had
received all his schooling in French.
His family life was thus seriously disrupted by the measure taken against him, which
the Advisory Board on Aliens had judged to be "inappropriate".
Having regard to these various circumstances, it appears that, as far as respect for
the applicant’s family life is concerned, a proper balance was not achieved between
the interests involved, and that the means employed was therefore disproportionate
to the legitimate aim pursued. Accordingly, there was a violation of Article 8 (art. 8).
This conclusion makes it unnecessary for the Court to consider whether the
deportation was also a breach of the applicant’s right to respect for his private life.”
(para 44 – 47)
12083/86 Beldjoudi v France, 26 March 1992
Algerian national married to French citizen, deportation order on grounds of public
order. Obstacles for wife to follow applicant to Algeria. Violation of article 8.
“Mrs Beldjoudi for her part was born in France of French parents, has always lived
there and has French nationality. Were she to follow her husband after his
deportation, she would have to settle abroad, presumably in Algeria, a State whose
language she probably does not know. To be uprooted like this could cause her great
difficulty in adapting, and there might be real practical or even legal obstacles, as was
indeed acknowledged by the Government Commissioner before the Conseil d’État
(see paragraph 27 above). The interference in question might therefore imperil the
unity or even the very existence of the marriage.” (para 78)
19465/92 Nasri, 13 July 1995
Deportation order placed on deaf mute Algerian national on grounds of public order,
gang rape most heinous of several committed crimes, handicap creating dependency
on family. Violation of article 8.
22070/93 Boughanemi 24 april 1996
Deportation order, threat to public order, ties with Tunesia (home country) still
existing, ties with France not particularly strong, not disproportionate to legitimate
aims, no violation of article 8. The bond between father and child can only be broken
23
in exceptional circumstances, which does not entail recognizing the child only after
ten months.
21794/93 C. v. Belgium 7 August 1996
Deportation order, drug related offences and conspiracy, not disproportionate to
legitimate aim, no violation of article 8.
“However, Mr C. also appears to have preserved important links
with Morocco. As he did not leave Morocco before the age of 11, he
must have learnt the language and established his first social and
school relationships there. It was also in Morocco that he married a
Moroccan woman. It was there that he divorced her and concluded an
agreement with her giving him custody of their child. Lastly, it was
in Morocco too that the applicant's father died.
In short, the interference in issue was not so drastic as that
which may result from the expulsion of applicants who were born in the
host country or first went there as young children.
Furthermore, the Court attaches great importance to the
seriousness of the offences which gave rise to Mr C.'s long term of
imprisonment and his deportation, namely unlawful possession of drugs
and conspiracy. The applicant had assisted in the sale of more than
17 kilograms of cannabis. In the light of the ravages of drugs among
the population, and especially among young people, it is not surprising
that the authorities show great firmness with regard to those who
actively contribute to the spread of this scourge.
Having regard to the nature of the applicant's links with
Belgium and Morocco and to the seriousness of the offences which gave
rise to his deportation, it has not been shown and there is nothing to
indicate that in the circumstances of the case the Belgian authorities
acted in an arbitrary or unreasonable manner, or failed to fulfil their
obligation to strike a fair balance between the relevant interests.
The applicant's expulsion cannot therefore be regarded as
disproportionate to the legitimate aims pursued. There has accordingly
been no violation of Article 8 “(para 34– 36)
25613/94 El Boujaïdi, 26 September 1996
Permanent exclusion order Moroccan national, drug related offences, young child
with French national, not established that he lost all links with Morocco and no
attempt to acquire French nationality. No violation of article 8.
25017/94 Mehemi v. France 26 September 1997 (1st judgment)
Deportation order based on drug offences, applicant has no link with Algeria, well
integrated into French society. Violation of article 8.
“The Court notes that the applicant was born in France, received all his schooling
there and lived there until the age of 33, before the permanent exclusion order was
enforced. His parents and his four brothers and sisters live there, as do his wife and
his three minor children, who were born in France and have French nationality (see
paragraphs 7–9 above).
Moreover, it has not been established that the applicant had links with Algeria other
than his nationality. It appears from the file that he did indeed make a number of trips
to North Africa before he was deported, but to Morocco not, with the exception of a
brief visit, to Algeria. Furthermore, the Government’s assertion that Mr Mehemi was a
member of a trafficking network “mainly composed of Algerians and Tunisians” is not
based on any real evidence; on the contrary, it appears from the file on the domestic
proceedings that the applicant’s eight co-defendants included four French nationals,
one Portuguese, one Franco-Tunisian, one Tunisian and one person born in Algeria
of unspecified nationality.
24
As regards establishing the household in Italy, while that is not inconceivable, given
that Mrs Mehemi is an Italian national, it would mean a radical upheaval for the
couple’s children. Moreover, on account of the applicant’s criminal record in
particular, there would no doubt be legal obstacles to his entry into and establishment
in Italian territory which the Government have not shown to be surmountable.
On the other hand, in view of the destructive effect of drugs on people’s lives, the
Court understands why the authorities show great firmness with regard to those who
actively contribute to the spread of this scourge. The fact that in 1989 the applicant
participated in a conspiracy to import a large quantity of hashish counts heavily
against him.
Nevertheless, in view of the applicant’s lack of links with Algeria, the strength of his
links with France and above all the fact that the order for his permanent exclusion
from French territory separated him from his minor children and his wife, the Court
considers that the measure in question was disproportionate to the aims pursued.
There has accordingly been a breach of Article 8. “ (para 36 – 37)
25404/94 Boujlifa, 21 October 1997
Deportation order Moroccan national, number of serious offences with severe
penalties, education, work and family in France but no attempt to acquire French
nationality when possible. No violation of article 8.
26102/95 Dalia v. France, 19 February 1998
Permanent exclusion order, public order, drug related offences, interference with right
to respect private and family life, no violation of article 8.
“The Court notes, as the Commission did, that the applicant arrived in France at the
age of 17 or 18 to join the rest of her family and lived there until 1987. She returned in
July 1989 with a visa valid for thirty days, on expiry of which she remained in France.
Her mother and her seven brothers and sisters live in France. In 1986 she married a
French national, by whom she did not have any children; the marriage was dissolved
in 1989. In 1990, when the exclusion order was still in force, she gave birth to a child
of French nationality. Mrs Dalia’s family ties are therefore essentially in France.
Nevertheless, having lived in Algeria until the age of 17 or 18, for two years without
her parents (see paragraph 7 above), she has maintained certain family relations,
spoken the local language and established social and school relationships. In those
circumstances, her Algerian nationality is not merely a legal fact but reflects certain
social and emotional links. In short, the interference in issue was not so drastic as
that which may result from the expulsion of applicants who were born in the host
country or first went there as young children (see the C. v. Belgium judgment of 7
August 1996, Reports 1996-III, p. 924, § 34).
The Court notes further that, as the Government pointed out, the French legislature,
in restricting (other than in the exceptional cases provided for in section 28 bis of the
Ordinance of 1945) relief from exclusion orders to aliens who had complied with such
an order, had wished to remove the benefit of such relief from those who remained in
France unlawfully. Applying this rule of procedure – which has a legitimate aim – to
the applicant cannot in itself entail a breach of Article 8. In support of her application
to have the exclusion order lifted, Mrs Dalia relied mainly on the fact that she was the
mother of a French child. The evidence shows that the applicant formed this vital
family link when she was in France illegally. She could not be unaware of the
resulting insecurity. In the Court’s view, this situation, which was created at a time
when she was excluded from French territory, cannot therefore be decisive.
Furthermore, the exclusion order made as a result of her conviction was a penalty for
dangerous dealing in heroin. In view of the devastating effects of drugs on people’s
lives, the Court understands why the authorities show great firmness with regard to
those who actively contribute to the spread of this scourge. Irrespective of the
sentence passed on her, the fact that Mrs Dalia took part in such trafficking still
weighs as heavily in the balance. “(para 53 – 54).
25
34374/97 Baghli, 30 November 1999
Ten year exclusion order, drug trafficking, no close ties with parents and siblings in
France, maintained ties with Algeria. No violation of article 8.
47160/99 Ezzoudhi v. France, 13 February 2000
Exclusion order, repeated drug related offences, strong links (education, work, family,
duration of stay) with France and no serious threat to security (mainly personal drug
use), violation of article 8.
43359/98 Adam v Germany, 4 October 2001
Exclusion order, repeated conviction of criminal offences from age 15, continued
after warning that it would lead to expulsion, interference with family life but fair
balance, started his own family life only after the expulsion order had been placed on
him. Inadmissible.
“Il est vrai qu'entretemps le requérant a épousé une ressortissante allemande, mais il
ne l'a fait qu'après avoir été expulsé vers la Turquie.”
37295/97 Yildiz v. Austria, 31 October 2002
Austria, minor offences. Violation of article 8.
“The Court will first examine the applicants’ family situation and the length of their
stay in Austria. It observes that the first applicant is not a second generation
immigrant, i.e. a person who was born or has lived the main part of his life in the
country from which he is going to be removed. He only came to Austria in 1989 at the
age of fourteen and must therefore have links with his country of origin and in
particular be able to speak Turkish. On the other hand, he was still an adolescent
when he came to Austria, where his close family was and is still living. In December
1996, when the Administrative Court confirmed the residence ban against him, he
had been living in Austria for seven years, he had been working there and had been
co-habiting for a little less than three years with the second applicant, who is also a
Turkish national but was born in Austria and has lived there all her life. Their
daughter, the third applicant, was one year and four months old at the material time.
In fact, the Austrian authorities issuing the residence ban acknowledged that the first
applicant had reached a high degree of integration in Austria. Nevertheless, the Court
considers that, as regards the possible effects of the residence ban on his family life,
the authorities failed to establish whether the second applicant could be expected to
follow him to Turkey, in particular whether she spoke Turkish and maintained any
links, other than her nationality, with that country.
It is true that, meanwhile, the applicants’ family situation has changed. The first and
second applicant divorced in March 2001 and, while the second applicant is residing
in Austria, the first applicant lives in Turkey. The third applicant is currently staying
with relatives in Turkey although the second applicant, who has sole custody over the
child, asserts that she intends to bring her back to Austria. However, the Court has to
make its assessment in the light of the position when the residence ban became final
(see paragraph 34 above). Its task is to state whether or not the domestic authorities
complied with their obligation to respect the applicants’ family life at that particular
moment and it cannot have regard to circumstances which only came into being after
the authorities took their decision. Nor can it be the Court’s role to speculate as to
whether there is – as claimed by the applicants – a causal link between the contested
measure and the subsequent developments, in particular the first and second
applicants’ divorce.
Next, the Court will turn to the offences committed by the first applicant, as their
gravity is an essential element for assessing the proportionality of the interference
with the applicants’ family life. The Court notes that in 1993 the first applicant, who
was then still a minor, was convicted twice by the criminal courts, once for shop-lifting
with a sentence of three days’ imprisonment suspended on probation, and once for
theft without a sentence being pronounced. Between 1992 and April 1994 he was
convicted seven times of traffic offences, in particular driving without a licence and
26
once ignoring a red light and high speeding. The fines imposed on him amounted to a
total sum of ATS 28,000 (equivalent to EUR 2,035). In sum, the Court finds that these
offences were not negligible. However, as is shown by the modest penalties imposed,
the domestic authorities considered them to be of a minor nature. Moreover, the first
applicant did not commit any further offences between April 1994 and December
1996, when the residence ban proceedings were terminated. Thus, in the Court’s
view the authorities’ fear that he constituted a danger to public order and security in
that would commit further offences is mitigated by the particular circumstances of the
case (see Boultif v. Switzerland, cited above, § 51, with further references).” (Para 43
- 45)
53470, Mehemi v. France 10 April 2003 (2nd Judgment)
In this second complaint, mr. Mehemi complained that the exclusion order remained
in effect and complained of the conditions imposed on his residence in France after
his return. The Court regards the delay of 3,5 months in processing the permit as not
excessive. The deportation order combined with a compulsory residence order did not
interfere with his family life since the deportation order had no legal effect and the
complainant had been able to re-establish ties with his family.
No violation of article 8.
36757/97 Jakupovic v Austria, 6 February 2003
Expulsion of 16-years old national of Bosnia and Herzegovina, convictions of
burglary and possession of arms, country to be expelled to just recently experienced
armed conflict, applicant has no close relatives there, violation of article 8.
“The Court observes that at the time of the expulsion the applicant had not been in
Austria for a long time – just four years. Furthermore his situation was not
comparable to that of a second generation immigrant, as he had arrived in Austria at
the age of eleven, had previously attended school in his country of origin and must
therefore have been well acquainted with its language and culture. However, the
residence prohibition seriously upset his private and family life: he had arrived in
Austria with his brother to join his mother and the new family she had founded there
and has apparently no close relatives in Bosnia. The applicant's father remained in
Bosnia, a fact which is emphasised by the Government, but the applicant points out
that he last saw his father in 1988 and the father has been reported missing since the
end of the armed conflict in that country.
Thus, the Court considers that very weighty reasons have to be put forward to justify
the expulsion of a young person (16 years old), alone, to a country which has recently
experienced a period of armed conflict with all its adverse effects on living conditions
and with no evidence of close relatives living there.” (para 28 – 29)
52853/99 Yilmaz v. Germany, 17 April 2003
Deportation order, Turkish national, child with German national, various offences.
Violation of article 8.
”La Cour relève qu’entre-temps la relation du requérant avec la mère de l’enfant
semble avoir cessé d’exister ; le requérant parle de tensions entre les deux à ce
sujet. Elle rappelle cependant qu’elle est appelée à examiner la situation du
requérant au moment où la mesure d’expulsion est devenu définitive (paragraphe 37
ci-dessus). Sa tâche consiste à constater si ou non les autorités nationales ont
dûment pris en considération la situation familiale du requérant à ce moment précis
sans avoir regard à des circonstances survenues ultérieurement (Yildiz c. Autriche, no
37295/97, 31 octobre 2002, CEDH 2002-..., § 44). (para 45)
Pour ce qui est de la gravité des infractions commises par le requérant, la Cour note
que le requérant était relativement jeune (19 et 20 ans) à l’époque des faits qui
étaient à l’origine de ses condamnations et qu’il a encouru une peine globale de trois
ans ; par ailleurs, il a été relâché après avoir purgé les deux tiers de sa peine. Elle
relève au demeurant que le requérant n’a pas été condamné pour des délits de
27
stupéfiants, un domaine où la Cour conçoit que les Etats contractants fassent preuve
d’une grande fermeté à l’égard de ceux qui contribuent à la propagation de ce fléau
(arrêts C. c. Belgique du 7 août 1996, Recueil 1996-III, p. 924, § 35, Dalia c. France
du 19 février 1998, Recueil 1998-I, p. 92, § 54, et Baghli c. France, no 34374/97, 30
novembre 1999, CEDH 1999-VIII, § 48 in fine, et Jankov c. Allemagne (déc.), no
35112/97, 13 janvier 2000). (para 46)
La Cour considère que la mesure d’expulsion du requérant n’était pas en soi
disproportionnée aux buts légitimes poursuivis par les autorités nationales.
Cependant, le fait qu’elle a été arrêtée sans l’assortir d’une limitation dans le temps
s’analyse en une ingérence disproportionnée, compte tenu des circonstances de
l’espèce, à savoir, d’une part, la situation familiale du requérant, en particulier la
naissance de son fils en février 1999 ainsi que le jeune âge de celui-ci (voir les arrêts
Berrehab c. Pays-Bas du 21 juin 1988, série A no 138, p. 16, § 29, et Mehemi c.
France du 26 septembre 1997, Recueil 1997-VI, p. 1972, § 37 in fine) et, d’autre part
le fait qu’il bénéficiait d’un titre de séjour illimité en Allemagne au moment où la
mesure d’expulsion fut arrêtée (voir, a contrario, Jakupovic c. Autriche, no 36757/97,
6 février 2003, § 28). ” (para 48)
53441/99 Benhebba v. France, 10 July 2003
Ten year exclusion order, persistent reoffending and serious offences, no links with
country of origin (Algeria), relations between adults do not necessarily qualify for
family life without further dependency, necessary for prevention of disorder and
crime. No violation of article 8.
42703/98 Radovanovic v. Austria, 22 April 2004
Residence prohibition of unlimited duration for conviction of aggravated robbery and
burglary, juvenile at the time, no previous offences, major part of sentence suspended,
stronger links with Austria than Serbia and Montenegro (origin) and overly rigorous
measure, no fair balance, violation of article 8.
“The Court notes that the applicant, a single young adult at the time of his expulsion,
is not a second generation immigrant as, despite his birth in Austria, he did not
permanently live there until the age of ten. Given the young age at which he arrived,
the Court will nevertheless assess the necessity of the interference by applying the
same criteria it usually applies in cases of second generation immigrants who have
not yet founded a family of their own in the host country. These criteria, so far as
material, are the nature and gravity of the offence committed by the applicant and the
length of his stay in the host country. In addition the applicant’s family ties and the
social ties he established in the host country by receiving his schooling and by
spending the decisive years of his youth there are to be taken into account (see
Benhebba v. France, no. 53441/99, §§ 32-33, 15 June 2003).
The Court considers the present case needs to be distinguished from a number of
cases concerning the expulsion of second generation immigrants, in which the Court
found no violation of Article 8 of the Convention (see Boujlifa v. France, judgment of
21 October 1997, Reports 1997-VI, p. 2264, § 42; Bouchelkia v. France, judgment of
29 January 1997, Reports 1997-I, p. 65, §§ 50-51; El Boujaïdi v. France, judgment of
26 September 1997, Reports 1997-I, p. 63, §§ 40-41; and Dalia, cited above, p. 92,
§§ 53-54). These cases all involved second generation immigrants who arrived in the
host country at an early age and were convicted of serious offences with lengthy
terms of unconditional imprisonment. Furthermore, they concerned drug offences, the
kind of offence, for which the Court has shown understanding of domestic authorities’
firmness with regard to those who actively contribute to its spread (see C. v. Belgium,
7 August 1996, Reports 1996-III, p. 924, § 35; Dalia, cited above, p. 92, § 54, Baghli
v. France, no. 34374/97, 30 November 1999, § 48 in fine, ECHR 1999-VIII; and
Yilmaz v. Germany, no. 52853/99, § 46, 17 April 2003). In the present case, despite
the shorter duration of the applicant’s stay in Austria the Court attaches considerable
weight to the fact that although the applicant was convicted of aggravated robbery, he
was only sentenced to a six-month unconditional term of imprisonment, whereas
twenty-four months were suspended on probation.” (para 33 – 34)
28
52206/99 Mokrani v France, 15 July 2004
Second generation immigrant, deportation order drug related offences, Boultif criteria
fully applied because family life with spouse and children, no ties other than
nationality with Algeria (country of origin), violation of article 8.
Applying the Boultif criteria in second generation cases :
“La Cour rappelle que, dans son arrêt Boultif précité, elle a défini comme suit les
principes directeurs devant guider son appréciation en cas de mesure d'éloignement
prise par un Etat contractant à l'égard d'un étranger arrivé adulte sur son territoire :
- la nature et la gravité de l'infraction commise par le requérant ;
- la durée de son séjour dans le pays d'où il va être expulsé ;
- la période qui s'est écoulée entre la perpétration de l'infraction et la mesure
litigieuse, ainsi que la conduite de l'intéressé durant cette période ;
- la nationalité des diverses personnes concernées ;
- la situation familiale du requérant, par exemple la durée de son mariage, et d'autres
éléments dénotant le caractère effectif de la vie familiale d'un couple ;
- le point de savoir si le conjoint était au courant de l'infraction au début de la relation
familiale ;
- la naissance d'enfants et, le cas échéant, leur âge ;
- la gravité des difficultés que risque de connaître le conjoint dans le pays d'origine de
son époux ou épouse.
Les mêmes critères doivent à plus forte raison être utilisés pour les immigrés de la
seconde génération ou des étrangers arrivés dans leur prime jeunesse, pour autant
que ceux-ci aient fondé une famille dans leur pays d'accueil. Si tel n'est pas le cas, la
Cour n'aura égard qu'aux trois premiers d'entre eux. S'ajoutent toutefois à ces
différents critères, les liens particuliers que ces immigrés ont tissés avec le pays
d'accueil où ils ont passé l'essentiel de leur existence. Ils y ont reçu leur éducation, y
ont noué la plupart de leurs attaches sociales et y ont donc développé leur identité
propre. Nés ou arrivés dans le pays d'accueil du fait de l'émigration de leurs parents,
ils y ont le plus souvent leurs principales attaches familiales. Certains de ces
immigrés n'ont même conservé avec leurs pays natal que le seul lien de la nationalité
(arrêts Mehemi c. France du 26 septembre 1997, Recueil 1997-VI, p. 1971, § 36 et
Boujlifa c. France du 21 octobre 1997, Recueil 1997-VI, p. 2264, § 44 et, a contrario,
arrêts Bouchelkia et Baghli précités, respectivement § 50 et § 48 ; voir aussi :
Recommandation 1504 (2001) de l'Assemblée parlementaire du Conseil de l'Europe
relative à la non-expulsion des immigrés de longue durée). “ (para 30 – 31)
Balancing the interests :
“La Cour a examiné ensuite la possibilité pour le requérant et son épouse d'établir
une vie familiale ailleurs. Outre l'absence de liens avérés avec d'autres pays que la
France et l'Algérie et les difficultés d'intégration en résultant, il est peu probable qu'ils
obtiennent la possibilité de s'installer dans un pays tiers, eu égard à la nature de
l'infraction perpétrée. Quant à l'établissement du ménage en Algérie, il paraît
difficilement concevable d'attendre de l'épouse, une ressortissante française n'ayant
jamais vécu en Algérie et n'ayant pas de liens avec ce pays, qu'elle suive le
requérant en Algérie. En outre, rien n'indique que cet Etat serait tenu d'autoriser
l'entrée et l'installation de l'épouse, de nationalité étrangère, sur son territoire.”(para
34)
“Ces éléments et surtout l'intensité des liens personnels du requérant avec la France
suffisent à la Cour pour conclure que ladite mesure, si elle recevait exécution, ne
serait pas proportionnée aux buts poursuivis.” (para 35)
32231/02 Keles v Germany, 27 October 2005
Expulsion to Turkey, number of relatively ‘mild’ offences, in Germany since age 10
(44-years old now), in possession of permanent residence permit, difficulties for
children if they were to follow him, violation of article 8 because of unlimited
character of the exclusion.
29
“The Court notes that the applicant is not a so-called “second generation immigrant”
as he first entered Germany at the age of ten. Given the relatively young age at which
he arrived, the Court will nevertheless assess the necessity of the interference by
applying criteria which are similar to those it usually applies in cases of second
generation immigrants (see Radovanovic v. Austria, no. 42703/98, § 33, 22 April
2004; Üner v. the Netherlands, no. 46410/99, § 40, 5 July 2005). (para 56)
(…)
The Court considers that the applicant’s expulsion as such was possible. Given
however the circumstances of this specific case, in particular the nature of the
applicant’s offences, the duration of his lawful stay in Germany, the fact that he had
been in possession of a permanent residence permit, and the difficulties which the
applicant’s children could be expected to face if they followed him to Turkey, the
Court considers that an unlimited exclusion from the German territory violates the
applicant’s rights to the enjoyment of his private and family life. There has accordingly
been a violation of Article 8 of the Convention.” (para 66)
50278/99 Aoulmi v. France, 17 January 2006
Exclusion order for drugs related offences, only ‘special ties’ with daughter, no
violation of article 8.
”Pour ce qui est de la gravité des infractions commises par le requérant, la Cour note
que la mesure prononcée le 6 décembre 1988 par le tribunal de grande instance de
Lyon et confirmée le 27 avril 1989 par la cour d’appel de Lyon, complémentaire à la
peine d’emprisonnement prononcée, se fonde sur les faits pénaux réprimés par la
même décision, ainsi que sur deux condamnations antérieures essentiellement pour
des faits de vol avec effraction et de recel, et l’échec de toutes les mesures
antérieures tendant à favoriser sa réinsertion sociale. La cour d’appel de Lyon a
notamment relevé qu’à l’époque des faits, le requérant subissait une peine
d’emprisonnement en semi-liberté, qu’il avait abandonné son travail depuis un mois
et « préférait » jouer les intermédiaires entre un fournisseur de drogue et ses clients
plutôt que d’aller travailler.
La Cour relève encore que la condamnation portait sur un trafic d’héroïne, domaine
où elle conçoit que les Etats contractants fassent preuve d’une grande fermeté à
l’égard de ceux qui contribuent à la propagation de ce fléau (arrêts C. c. Belgique du
7 août 1996, Recueil 1996-III, p. 924, § 35, Dalia c. France du 19 février 1998,
Recueil 1998-I, p. 92, § 54, Baghli précité, § 48 in fine, Jankov c. Allemagne (déc.), no
35112/97, 13 janvier 2000et Mokrani c. France, no 52206/99, § 32, 15 juillet 2003). La
peine de quatre ans d’emprisonnement prononcée contre lui atteste de la gravité des
faits reprochés. Reste à déterminer si une mesure aussi radicale que l’expulsion était
proportionnée au but poursuivi, compte tenu des attaches du requérant avec la
France.
Le requérant est arrivé en France à l’âge de quatre ans. Depuis lors, il a séjourné en
France où il a effectué toute sa scolarité. Il a l’essentiel de ses attaches sociales dans
ce pays et il n’a plus d’attaches autres que le lien de nationalité avec son pays
d’origine, comme le reconnaît le Gouvernement. Si tous les membres de sa famille
vivent en France, la Cour rappelle à cet égard que les rapports entre adultes ne
bénéficieront pas nécessairement de la protection de l’article 8 de la Convention sans
que soit démontrée l’existence d’éléments supplémentaires de dépendance, autres
que les liens affectifs normaux (Ezzouhdi c. France, no 47160/99, 13 février 2001, §
34, et Kwakie-Nti et Dufie c. Pays-Bas (déc.), no 31519/96, 7 novembre 2000, non
publiés).
La Cour note en premier lieu que le requérant a été marié avec une ressortissante
française d’avril 1989 à janvier 1993. Lorsque le requérant s’est marié, la mesure
d’interdiction du territoire avait déjà été prononcée. Partant, il ne pouvait ignorer la
relative précarité de sa situation (voir, mutatis mutandis, Baghli c. France,
no 34374/97, § 48, 30 septembre 1999 et Mokrani c. France précité, § 34). La Cour
rappelle cependant que pour examiner la question de savoir si le requérant avait une
vie familiale au sens de l’article 8, elle se place à l’époque à laquelle la mesure
critiquée est devenue définitive (arrêts Bouchelkia et El Boujaïdi précités,
respectivement § 41 et § 33), soit en l’espèce à la date de l’arrêt de la cour d’appel
30
de Lyon rejetant la demande en relèvement de l’interdiction du territoire. A ce
moment, le mariage était dissous depuis plus de trois ans.
La Cour relève encore que le requérant est le père d’une fille née en 1983 et qui avait
donc seize ans lorsque le requérant a été reconduit à la frontière. Toutefois, le
requérant indique seulement qu’il avait avec elle des « liens privilégiés » sans en
préciser la nature ni le rôle qu’il pouvait jouer dans sa vie.
Malgré l’intensité des liens personnels du requérant avec la France, la Cour conclut
que la cour d’appel de Lyon pouvait légitimement considérer, du fait du
comportement du requérant et la gravité des faits reprochés que lui infliger une
mesure d’interdiction du territoire définitive était nécessaire à la défense de l’ordre et
à la prévention des infractions pénales. La mesure litigieuse était, dès lors,
proportionnée aux buts poursuivis (Baghli précité, §§ 48 et 49, El Boujaïdi c. France,
arrêt du 26 septembre 1997, Recueil 1997-VI, §§ 41 et 42, Benamar c. France (déc.),
no 42216/98, 14 novembre 2000, et Jankov précité). ” (para 85 - 90).
31
5.
State obligations to accept a right to legal residence for
reasons of family life
Though the Court does not derive a general right to family reunification from
Article 8, it has formulated some criteria for assessing whether there is an
obligation for the host state to allow a family member to join the family
already residing there. These criteria vary from very strict (like in the cases of
Gül and Ahmut) to more lenient (like in the cases of Şen and Tuquabo-Tekle).
From the Cruz Varas case it becomes clear that there is normally no issue under
Article 8 when no one of the family members has legal residence in the host state.
The Solomon decision makes clear that a relationship, entered into when the
residence situation is precarious, normally does not justify an expectation that
Article 8 will offer protection against expulsion. An exception to this point of
departure was made in the case of Rodrigues da Silva and Hoogkamer. Here, the
interests of a child played a mayor role.
9214/80-9473/81-9474/81 Abdulaziz Abdulaziz, Cabales, and Balkandali v. United
Kingdom, 28 May 1985
Three husbands wanting to join three women legally residing in the UK are refused
lawful residence. Discrimination on grounds of sex, no violation of article 8 by itself.
“The Court observes that the present proceedings do not relate to immigrants who
already had a family which they left behind in another country until they had achieved
settled status in the United Kingdom. It was only after becoming settled in the United
Kingdom, as single persons, that the applicants contracted marriage.” (para 68)
The Court on an obligation of states to respect the choice of matrimonial residence by
married couples:
“The duty imposed by Article 8 cannot be considered as extending to a general
obligation on the part of a Contracting State to respect the choice by married couples
of the country of their matrimonial residence and to accept the non-national spouses
for settlement in that country.” (para 68)
And on establishing family life in the country of origin:
“In the present case, the applicants have not shown that there were obstacles to
establishing family life in their own or their husbands’ home countries or that there
were special reasons why that could not be expected of them.” (para 68)
15576/89 Cruz Varas v. Sweden, 20 March 1991
Expulsion father and failed expulsion of mother and son after refused application for
refugee status, claimed violation of article 8 because expulsion created separation,
separation caused by mother and son choosing to go into hiding , court observes no
obstacles to establish family life in home country Chile, no lack of respect for family
life, no violation of article 8.
“As noted by both the Government and the Commission, the expulsion of all three
applicants was ordered by the Swedish Government but the second and third
applicants went into hiding and have so remained in order to evade enforcement of
the order (see paragraph 33 above). Moreover, the evidence adduced does not show
that there were obstacles to establishing family life in their home country (see, mutatis
mutandis, the Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A
no. 94, p. 34, § 68). The Court refers in this respect to its finding concerning the
applicants’ complaints under Article 3 (art. 3) (see paragraph 86 above). In these
circumstances responsibility for the resulting separation of the family cannot be
imputed to Sweden.” (para 88)
32
23218/94 Gül v. Switzerland, 19 February 1996
Kurdish asylum seeker, wife and child in Switzerland, wants to be reunited with child
that stayed behind in Turkey, court observes no obstacles preventing them from
developing family life in Turkey.
The Court on ‘positive’ and ‘negative’ obligations stemming from article 8.
“The Court reiterates that the essential object of Article 8
(art. 8) is to protect the individual against arbitrary action
by the public authorities. There may in addition be positive
obligations inherent in effective "respect" for family life.
However, the boundaries between the State's positive and negative
obligations under this provision (art. 8) do not lend themselves
to precise definition. The applicable principles are,
nonetheless, similar. In both contexts regard must be had to the
fair balance that has to be struck between the competing
interests of the individual and of the community as a whole; and
in both contexts the State enjoys a certain margin of
appreciation (see, most recently, the Keegan v. Ireland judgment
of 26 May 1994, Series A no. 290, p. 19, para. 49, and the Kroon
and Others v. the Netherlands judgment of 27 October 1994,
Series A no. 297-C, p. 56, para. 31).
Moreover, where immigration is concerned, Article 8 (art. 8)
cannot be considered to impose on a State a general obligation
to respect the choice by married couples of the country of their
matrimonial residence and to authorise family reunion in its
territory. In order to establish the scope of the State's
obligations, the facts of the case must be considered (see,
mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment
previously cited, p. 34, para. 68, and the Cruz Varas and Others
v. Sweden judgment of 20 March 1991, Series A no. 201, p. 32,
para. 88).” (para 38).
The case eventually is limited to one single issue:
“In this case, therefore, the Court's task is to determine
to what extent it is true that Ersin's move to Switzerland would
be the only way for Mr Gül to develop family life with his son.” (para 39)
The Court came to the following conclusion:
In view of the length of time Mr and Mrs Gül have lived in
Switzerland, it would admittedly not be easy for them to return
to Turkey, but there are, strictly speaking, no obstacles
preventing them from developing family life in Turkey. That
possibility is all the more real because Ersin has always lived
there and has therefore grown up in the cultural and linguistic
environment of his country. On that point the situation is not
the same as in the Berrehab case, where the daughter of a
Moroccan applicant had been born in the Netherlands and spent all
her life there (see the Berrehab judgment previously cited, p. 8,
para. 7).
Having regard to all these considerations, and while
acknowledging that the Gül family's situation is very difficult
from the human point of view, the Court finds that Switzerland
has not failed to fulfil the obligations arising under Article 8
para. 1 (art. 8-1), and there has therefore been no interference
in the applicant's family life within the meaning of that
Article.” (para 42 – 43)
33
21702/93 Ahmut v. the Netherlands, 28 November 1996
Father in the Netherlands, nine-year old son in Morocco sent back there while
awaiting decision on application for residence permit, son strong links with Morocco,
no obstacles for father to return, article 8 does not guarantee right to choose the most
suitable place, no violation of article 8.
“The fact of the applicants' living apart is the result of Salah Ahmut's conscious
decision to settle in the Netherlands rather than remain in Morocco.
In addition to having had Netherlands nationality since February 1990, Salah
Ahmut has retained his original Moroccan nationality. Souffiane has
Moroccan nationality only.
It therefore appears that Salah Ahmut is not prevented from maintaining the degree
of family life which he himself had opted for when moving to the Netherlands in the
first place, nor is there any obstacle to his returning to Morocco. Indeed, Salah
Ahmut and Souffiane have visited each other on numerous occasions since the
latter's return to that country.” (para 70)
“It may well be that Salah Ahmut would prefer to maintain and intensify his family
links with Souffiane in the Netherlands. However, as noted in paragraph 67 above,
Article 8 (art. 8) does not guarantee a right to choose the most suitable place to
develop family life.” (para 71)
39003/97 Knel and Veira v the Netherlands, 5 September 2000
Mother moved from Surinam leaving son behind, first attempt for provisional
residence permit after two years, application was withdrawn and later refused a
couple of times, son 16 at time conclusion of domestic proceedings, separation result
of conscious decision mother, no right to choose most suitable place for family life
under article 8. Inadmissible.
“Although the Court appreciates that the applicants would now prefer to maintain and
intensify their family life in the Netherlands, Article 8, as noted above, does not
guarantee a right to choose the most suitable place to develop family life. In this
connection the Court notes that the fact of the applicants' living apart from June 1985
until October 1993 was apparently the result of Ms Knel’s initial conscious decision to
settle in the Netherlands with her husband rather than remain in Surinam with her
son.”
44328/98 Solomon v. the Netherlands, 5 September 2000
Nigerian national, asylum application rejected, never resided legally in the
Netherlands, relationship and child with Dutch national, applicant could not at any
time reasonably expect to be able to continue this family life in the Netherlands,
manifestly ill-founded, inadmissible. Enumeration of relevant factors to take into
account.
“Whether removal or exclusion of a family member from a Contracting State is
incompatible with the requirements of Article 8 will depend on a number of factors:
the extent to which family life is effectively ruptured, the extent of the ties in the
Contracting State, whether there are insurmountable obstacles in the way of the
family living in the country of origin of one or more of them, whether there are factors
of immigration control (eg. history of breaches of immigration law) or considerations
of public order weighing in favour of exclusion ( see e.g. the Abdulaziz, Cabales and
Balkandali judgment referred to above at § 68, the Court’s Berrehab v. the Netherlands
judgment of 21 June 1988, Series A no. 138, § 29, the Beldjoudi v. France judgment of
26 March 1992, Series A No. 234, p. 28, § 78, the Gül v. Switzerland judgment of 19
February 1996, Reports 1996-IV p. 159 at p. 176, § 42, and the Bouchelkia v. France
judgment of 29 January 1997, Reports of judgments and decisions 1997-I, p. 65, §§
50-53).
In the present case the Court takes into consideration that the applicant was never
given any assurances that he would be granted a right of residence by the competent
Netherlands authorities. He was allowed to await the Deputy Minister’s decision on
his asylum request in the Netherlands. After asylum was denied him, his request for
34
a stay of expulsion was refused by the competent court on 22 December 1994. From
then onwards, the applicant’s residence in the Netherlands, which was already
precarious, lost what little foundation it had had until then. Family life between the
applicant and his Netherlands national partner – and later, with their child – was
developed after this date. The Court is of the opinion that in these circumstances the
applicant could not at any time reasonably expect to be able to continue this family
life in the Netherlands (cf. the Bouchelkia judgment cited above, § 53; and Baghli v.
France, no. 34374/97, § 48, to be published in ECHR 1999).”
31465/96 Şen v. The Netherlands, 21 December 2001
Two Turkish nationals residing in The Netherlands, residence permit for the third
applicant, a child was rejected because she was no longer considered part of her
parents’ family unit, but had become a member of her aunt’s family, child had strong
links with Turkey, major obstacle to the rest of the family’s return to Turkey, Court
rejected the idea that leaving the child behind was a final decision. Decisive
importance was attached to the fact that the Dutch government forced the parents to
choose between abandoning the position they had acquired in the Netherlands and
leaving their daughter in Turkey. Violation of article 8.
“La présente affaire offre nombre de points communs avec la situation examinée
dans l’arrêt Ahmut où aucune violation de l’article 8 n’avait été constatée au vu des
faits de l’espèce.
Comme dans l’affaire Ahmut, la résidence séparée des requérants est le résultat de
la décision, prise délibérément par les parents lorsque la deuxième requérante a
rejoint son mari aux Pays-Bas et les requérants ne se trouvent donc pas empêché de
maintenir le degré de vie familiale que les parents ont eux-mêmes choisis en 1986.
Après le départ de sa mère pour les Pays-Bas en 1986, Sinem fut prise en charge
par sa tante et son oncle (§§ 14 et 17 ci-dessus). Elle a vécu toute sa vie en Turquie
et a, en conséquence, des liens solides avec l’environnement linguistique et culturel
de son pays où elle y possède toujours de la famille, à savoir ses deux oncles et ses
deux tantes et des cousins, auxquels s’ajoute son grand-père qui réside
régulièrement dans ce pays (§17 ci-dessus).
Contrairement à ce qu’elle a considéré dans l’affaire Ahmut, la Cour estime qu’il
existe toutefois dans la présente affaire un obstacle majeur au retour de la famille
Sen en Turquie. Titulaires l’un d’un permis d’établissement et l’autre d’un permis de
séjour du fait de son mariage avec une personne autorisée à s’établir aux Pays-Bas,
les deux premiers requérants ont établi leur vie de couple aux Pays-Bas, où ils
séjournent légalement depuis de nombreuses années (voir a contrario, arrêt Gül
précité, pp. 175-176, § 41) et où un second enfant est né en 1990, puis un troisième
en 1994. Ces deux enfants ont toujours vécu aux Pays-Bas, dans l’environnement
culturel de ce pays et y sont scolarisés (voir arrêt Berrehab précité, p. 8, § 7 et p. 16,
§ 29). Ils n’ont de ce fait que peu ou pas de liens autres que la nationalité avec leur
pays d’origine (voir notamment, arrêt Mehemi c. France du 26 septembre 1997,
Recueil 1997-VI, p. 1971, § 36) et il existait donc dans leur chef des obstacles à un
transfert de la vie familiale en Turquie (voir a contrario, les arrêts Gül, p. 176, § 42, et
Ahmut, p. 2033, § 69). Dans ces conditions, la venue de Sinem aux Pays-Bas
constituait le moyen le plus adéquat pour développer une vie familiale avec celle-ci
d’autant qu’il existait, vu son jeune âge, une exigence particulière de voir favoriser
son intégration dans la cellule familiale de ses parents (voir notamment, mutatis
mutandis, arrêt Johansen c. Norvège du 7 août 1996, Recueil 1996-III, pp. 10011002, § 52, et pp. 1003-1004, § 64, et arrêt X., Y. et Z. c. Royaume-Uni du 22 avril
1997, Recueil 1997-II, p. 632, § 43), aptes et disposés à s’occuper d’elle. Il est vrai
que ces derniers ont choisi, après que Sinem ait passé les trois premières années de
sa vie avec sa mère, de laisser leur aînée en Turquie lorsque la deuxième requérante
est venue rejoindre son époux aux Pays-Bas en 1986. Cette circonstance intervenue
dans la prime enfance de Sinem ne saurait toutefois être considérée comme une
décision irrévocable de fixer, à tout jamais, son lieu de résidence dans ce pays et de
ne garder avec elle que des liens épisodiques et distendus, renonçant définitivement
à sa compagnie et abandonnant par là toute idée de réunification de leur famille. Il en
35
va de même de la circonstance que les requérants n’ont pas pu établir avoir participé
financièrement à la prise en charge de leur fille.
En ne laissant aux deux premiers requérants que le choix d’abandonner la situation
qu’ils avaient acquise aux Pays-Bas ou de renoncer à la compagnie de leur fille
aînée, l’Etat défendeur a omis de ménager un juste équilibre entre les intérêts des
requérants, d’une part, et son propre intérêt à contrôler l’immigration, de l’autre, sans
qu’il soit nécessaire pour la Cour d’aborder la question de savoir si les proches de
Sinem résidant en Turquie sont disposés et aptes à s’occuper d’elle, comme l’affirme
le Gouvernement défendeur.” (para 38 - 41)
41226/98 I.M. v. the Netherlands, 25 March 2003
Cape Verdean national leaves daughter behind, applies for residence permit daughter
only 6,5 years later, son born in the Netherlands in the meantime, voluntary decision
to leave child behind in combination with waiting 6,5 years and the observation that
there are no relevant obstacles preventing the applicant to enjoy family life in Cape
Verde island as well as the age of the daughter at the time of the final decision (12,
and not so much in need of care anymore), fair balance, inadmissible.
“Although the Court appreciates that the applicant would now prefer to maintain and
intensify her family life with S. in the Netherlands, Article 8, as noted above, does not
guarantee a right to choose the most suitable place to develop family life. Moreover,
the applicant, who still possesses Cape Verdean nationality, has failed to substantiate
her claim that she would be unable to develop this family life in the Cape Verde
Islands. It is further to be noted that by the time a final decision had been taken on
the applicant’s request, S. had reached an age where she was presumably not as
much in need of care as a young child, and also that she has a considerable number
of relatives living in the Cape Verde Islands.”
53102/99 Chandra v. the Netherlands, 13 May 2003
Mother Netherlands national of Indonesian origin, children Indonesian nationals,
stayed behind while mother moved to the Netherlands, children were refused
residence because ties were severed and mother did not meet income requirements,
not established that mother cannot go back, children have strong links with Indonesia,
no right to choose most suitable place, children residing in the Netherlands at the time
of the procedure does not make any difference, inadmissible.
“Although the Court appreciates that the applicants would now prefer to maintain and
intensify their family life in the Netherlands, Article 8, as noted above, does not
guarantee a right to choose the most suitable place to develop family life. Moreover,
the Court is not persuaded by the applicants’ claim that they would be unable to
develop this family life in Indonesia. In this connection the Court considers, firstly, that
it has not been established that the mother could not go back to Indonesia to settle
with her children. Secondly, the applicants have failed to counter the valid argument
advanced by the Government to the effect that they might settle at a location in
Indonesia away from the mother’s ex-husband.
The fact that the children have been staying with their mother in the Netherlands
since 1997 does not impose a positive obligation on the State to allow the children to
reside there since they had entered the Netherlands only for visiting purposes.
Having chosen not to apply for a provisional residence visa from Indonesia prior to
travelling to the Netherlands, the applicants were not entitled to expect that, by
confronting the Netherlands authorities with their presence in the country as a fait
accompli, any right of residence would be conferred on them”.
53675/00 Andrade v. the Netherlands, 6 July 2004
Cape Verdean national, leaves her two young children behind, voluntarily decision,
children strong links with Cape Verde Island, no children born in the Netherlands
(compare Sen), no major obstacles to developing family life on Cape Verde Islands,
fair balance, inadmissible.
36
“The Court is not persuaded by the applicant’s argument that her case should not be
distinguished from the case of Şen v. the Netherlands (cited above). On the contrary,
it is to be noted that, unlike the parents in the Şen case, the applicant does not have
children who were born in the Netherlands, who are dependent on her and who have
few or no ties with their mother’s country of origin (see Şen, § 40).
Finally, the Court considers that it has not been shown that major obstacles exist
preventing the applicant from returning to the Cape Verde Islands and developing
family life with her daughters in that country. In this context the Court has also had
regard to the fact that the applicant’s children have always lived there and have
therefore grown up in that country’s cultural and linguistic environment (see Gül v.
Switzerland, judgment of 19 February 1996, Reports 1996-I, p. 176, § 42).”
43786/04 Benamar 5 April 2005
Three children left in the care of the father (ex-husband) in Morocco when mother
went to the Netherlands, children apply for permission to join their mother after father
has died, children have strong links with Morocco, no obstacles to develop family life
in Morocco, children all of age when final decision comes through, inadmissible.
“Although the Court appreciates that the applicants would now prefer to maintain and
intensify their family life in the Netherlands, Article 8, as noted above, does not
guarantee a right to choose the most suitable place to develop family life (see Gül v.
Switzerland, cited above, § 46, and Ahmut v. the Netherlands, cited above, § 63).
Moreover, the Court has found no indication of any insurmountable objective obstacle
for the applicants to develop this family life in Morocco. In this connection the Court
considers that it has not been established that it would be impossible for the mother
and her present husband, both being Moroccan nationals, to return to Morocco to
settle with the children.
The fact that the children have been staying with their mother in the Netherlands
since 1997 does not impose a positive obligation on the State to allow the children to
reside there since they had illegally entered the Netherlands, i.e. without holding a
provisional residence visa. Having chosen not to apply for a provisional residence
visa from Morocco prior to travelling to the Netherlands, the applicants were not
entitled to expect that, by confronting the Netherlands authorities with their presence
in the country as a fait accompli, any right of residence would be conferred on them”.
8876/04 Haydarie v. The Netherlands NL, 20 October 2005 (See also under ‘Means
of subsistence’.)
Mother and four children, three children in Pakistan whose residence permit was
refused because family tie had not been demonstrated and the mother did not comply
with the income requirement, regarding family life no distinction between two living
in the Netherlands and three in Pakistan. Income requirement not unreasonable.
Inadmissible.
As to the question as to whether two applicants were outside Dutch jurisdiction:
“The Court considers that, as regards the family life at issue in the present case – the
existence of which is not in dispute –, no distinction can be drawn between the two
applicants living in the Netherlands and the three others currently residing in
Pakistan. In these circumstances, it does not find it necessary to determine the
Government’s argument that the three applicants in Pakistan cannot be regarded as
finding themselves within the jurisdiction of the Netherlands State within the meaning
of Article 1 of the Convention jurisdiction.”
As to the income requirement:
“The Court notes that in the present case the crucial question is whether it could be
expected from the first applicant to comply with the income requirement under the
domestic immigration rules. On this point, the Court notes that, in order to meet this
requirement, the applicant should have an independent and lasting income of an
amount equal to benefits under the General Welfare Act to which she was entitled.
The Court further understands that the Netherlands authorities would not maintain
this income requirement if the first applicant could demonstrate to have made, during
37
a period of three years, serious but unsuccessful efforts to find gainful employment,
also bearing in mind the possible existence of an objective obstacle for the applicants’
return to Afghanistan.
In principle, the Court does not consider unreasonable a requirement that an alien
who seeks family reunion must demonstrate that he/she has sufficient independent
and lasting income, not being welfare benefits, to provide for the basic costs of
subsistence of his or her family members with whom reunion is sought.
As to the question whether such a requirement was reasonable in the instant case,
the Court considers that it has not been demonstrated that the applicant has in fact
actively sought gainful employment after 10 October 2000 when she became entitled
to work in the Netherlands. Although it is true that her Netherlands language and
sewing courses may have been helpful in this respect, there is no indication in the
case-file that she has in fact applied for any jobs. What does appear from the casefile is that she preferred to care for her wheel-chair bound sister at home. In this
respect, the Court considers that it has not been demonstrated that it would have
been impossible for the first applicant to call in and entrust the care for her sister to
an agency providing care for handicapped persons as referred to in the Regional
Court’s judgment of 19 June 2003.”
60665/00 Tuquabo-Tekle and others v. the Netherlands,
1 December 2005
Five Dutch nationals and one Eritrean national. Mother and later son came from
Eritrea, daughter Mehret stayed behind. Mother always intended daughter to join,
mother, husband and other children two minimal ties to Eritrea, best way to develop
family life was to bring Mehret to the Netherlands. Violation of article 8.
As to the question as to whether Mehret was outside Dutch jurisdiction:
“In their observations submitted after the application had been declared admissible
(see paragraphs 5 and 6 above), the Government contended that, in so far as the
application had been brought by, or on behalf of, Mehret Ghedlay Subhatu, it was
incompatible ratione personae with the provisions of the Convention, because that
applicant did not fall within the jurisdiction of the State within the meaning of Article 1
of the Convention. The Government referred to the case-law of the Court (Banković
and Others v. Belgium and 16 Other Contracting States (dec.) [GC], no. 52207/99,
ECHR 2001-XII), according to which it was only in exceptional cases that acts of
Contracting States performed, or producing effects, outside their territories could
constitute the exercise of jurisdiction by those States. However, the act complained of
in the present case – namely, the refusal of a residence permit to Mehret – came
nowhere near the kind of situation in which the Court had been prepared to accept
extraterritorial jurisdiction under the Convention. The State of the Netherlands had
merely exercised its day-to-day responsibility for the regulation and control of the
entry of aliens into its territory. To infer from such acts a direct responsibility of the
State for the protection of the rights enshrined in the Convention towards all persons
residing abroad who wished to enter the Netherlands would, according to the
Government, extend the notion of jurisdiction to an unacceptable level. (para 26)
(…)
In that context, the Court would first note that in Issa and Others the Turkish
Government argued that the need had arisen to examine the jurisdiction issue in that
case because the Court had reversed its case-law concerning the scope of
interpretation of Article 1 of the Convention in a decision of 12 December 2001
(Banković and Others, cited above), which post-dated the admissibility decision in
Issa and Others. However, in the present case, the Government submitted their
observations on the admissibility of the application on 22 April 2004, more than two
years after the Court’s decision in the Banković and Others case.
Secondly, in its Issa and Others judgment the Court found that in the particular
circumstances of that case – which concerned events alleged to have taken place in
northern Iraq – the jurisdiction issue was inextricably linked to the facts and, as such,
had to be considered to have been implicitly reserved for the merits stage (Issa and
Others, cited above, § 55). It has not been argued and does not appear that such
circumstances pertain in the present case.
38
In view of the above, the Government cannot be absolved from the obligation they
had to raise their preliminary objection prior to the Court’s decision of 19 October
2004 as to the admissibility of the application.” (para 30 – 31)
The Court explains why this case was different from other cases in which it rejected
the application:
“The Court has indeed previously rejected cases involving failed applications for
family reunion and complaints under Article 8 where the children concerned had in
the meantime reached an age where they were presumably not as much in need of
care as young children and increasingly able to fend for themselves. In cases of this
nature, the Court has also examined whether the children had grown up in the
cultural and linguistic environment of their country of origin, whether they had other
relatives there, and whether it could be expected of the parents to return to that
country (see, for instance, Benamar v. the Netherlands (dec.), no. 43786/04, 5 April
2005; I.M. v. the Netherlands (dec.), no. 41266/98, 25 March 2003; and Chandra and
Others v. the Netherlands (dec.), no. 53102/99, 13 May 2003).” (para 49)
“In the present case the Court notes that the applicants have not alleged that Mehret,
who undoubtedly has strong cultural and linguistic links with Eritrea, could no longer
be looked after by the relatives who have been doing so ever since her mother left.
They have, nevertheless, argued that Mehret’s age – rather than making her less
dependent on her mother – made it even more pertinent for her to be allowed to join
her family in the Netherlands. This was because, in accordance with Eritrean custom,
Mehret’s grandmother had taken her out of school, and Mehret had also reached an
age where she could be married off (see paragraph 13 above). Although Mrs
Tuquabo-Tekle disagreed with the choices made for Mehret, she was unable to do
anything about them as long as her daughter was living in Eritrea. The Court agrees
with the Government that the applicants’ arguments in this context do not, by
themselves, warrant the conclusion that the State is under a positive obligation to
allow Mehret to reside in the Netherlands. Even so – and bearing in mind that she
was, after all, still a minor – the Court accepts in the particular circumstances of the
present case that Mehret’s age at the time the application for family reunion was
lodged is not an element which should lead it to assess the case differently from that
of Şen.” (para. 50)
50435/99 Rodrigues Da Silva and Hoogkamer v. The Netherlands, 31 January 2006
The father is a Dutch national), the mother (Brazilian national) is illegally residing in
the Netherlands, one daughter who is a Dutch national, domestic authorities have
concluded it is in the interest of the child that she stays in the Netherlands, father has
been granted parental authority, the mother and the fathers parents take part in
parental care of the child while father plays less prominent role, relevant that lawful
residence had been possible during the lasting relationship with father although she
resided illegally throughout her stay, far-reaching consequences on family life, no fair
balance, violation of article 8.
“In view of the far-reaching consequences which an expulsion would have on the
responsibilities which the first applicant has as a mother, as well as on her family life
with her young daughter, and taking into account that it is clearly in Rachael's best
interests for the first applicant to stay in the Netherlands, the Court considers that in
the particular circumstances of the case the economic well-being of the country does
not outweigh the applicants' rights under Article 8, despite the fact that the first
applicant was residing illegally in the Netherlands at the time of Rachael's birth.
Indeed, by attaching such paramount importance to this latter element, the authorities
may be considered to have indulged in excessive formalism.”(para 44)
39
6.
Procedural protection implied by Article 8
The requirement in Article 8 (2) that the interference must be in accordance with law,
implies that there must be procedural safeguards against arbitrariness.
50963/99 Al-Nashif v Bulgaria, 20 September 2002
Expulsion, threat to national security. The interference with the applicants' family life
cannot be seen as based on legal provisions that meet the Convention requirements of
lawfulness. Violation of article 8.
“The Court reiterates that as regards the quality of law criterion, what is required by
way of safeguards will depend, to some extent at least, on the nature and extent of
the interference in question (see P.G. and J.H. v. the United Kingdom, no. 44787/98,
ECHR 2001-IX, § 46).
It considers that the requirement of “foreseeability” of the law does not go so far as to
compel States to enact legal provisions listing in detail all conduct that may prompt a
decision to deport an individual on national security grounds. By the nature of things,
threats to national security may vary in character and may be unanticipated or difficult
to define in advance.
There must, however, be safeguards to ensure that the discretion left to the executive
is exercised in accordance with the law and without abuse.
Even where national security is at stake, the concepts of lawfulness and the rule of
law in a democratic society require that measures affecting fundamental human rights
must be subject to some form of adversarial proceedings before an independent body
competent to review the reasons for the decision and relevant evidence, if need be
with appropriate procedural limitations on the use of classified information (see the
judgments cited in paragraph 119 above).
The individual must be able to challenge the executive's assertion that national
security is at stake. While the executive's assessment of what poses a threat to
national security will naturally be of significant weight, the independent authority must
be able to react in cases where invoking that concept has no reasonable basis in the
facts or reveals an interpretation of “national security” that is unlawful or contrary to
common sense and arbitrary.
Failing such safeguards, the police or other State authorities would be able to
encroach arbitrarily on rights protected by the Convention.
In the present case the initial proposal to deport Mr Al-Nashif was made by the police
and a prosecutor in Smolyan (see paragraph 21 above). It is true that the prosecution
authorities in Bulgaria are separate and structurally independent from the executive.
However, the Government have not submitted information of any independent inquiry
having been conducted. The prosecutor did not act in accordance with any
established procedure and merely transmitted the file to the police. The decisionmaking authority was the Director of the Passport Department of the Ministry of the
Interior (see paragraph 22 above).
Furthermore, the decision to deport Mr Al-Nashif was taken without disclosing any
reasons to the applicants, to their lawyer or to any independent body competent to
examine the matter.
Under Bulgarian law the Ministry of the Interior was empowered to issue deportation
orders interfering with fundamental human rights without following any form of
adversarial procedure, without giving any reasons and without any possibility for
appeal to an independent authority.
It is highly significant that the above legal regime was the object of challenges in
Bulgaria and that the judiciary was divided.
The Sofia City Court and the Supreme Administrative Court in some cases refused to
accept blank assertions by the executive in unreasoned decisions under the Aliens
Act. Some members of Parliament and judges of the Supreme Administrative Court
considered that the existing legal regime was unconstitutional (see paragraphs 38, 71
and 72 above).
40
The Constitutional Court, when examining a challenge to the above legal regime,
could not reach a majority, half of the judges holding that the unavailability in
Bulgarian law of judicial review of deportations in cases where the Ministry of the
Interior relied on “national security” was contrary to the Constitution and to the
Convention, as such a legal regime left unfettered discretion to the executive and
opened the door to possible abuse (see paragraphs 73-77 above).
This Court finds that Mr Al-Nashif's deportation was ordered pursuant to a legal
regime that does not provide the necessary safeguards against arbitrariness.” (para
121 – 128)
10377/04 Lupsa v Romania, 8 June 2006
Deportation order, exclusion from Romania for being capable of endangering national
security, interference with family life not in accordance with the law, violation of
article 8.
“The Court notes in the present case that, by an order of the public prosecutor’s
office, the applicant’s presence on Romanian territory was declared undesirable and
he was excluded from Romania for ten years and deported on the ground that the
Romanian Intelligence Service had received “sufficient and serious intelligence that
he was engaged in activities capable of endangering national security”.
The Court observes that no proceedings were brought against the applicant for
participating in the commission of any offence in Romania or any other country. Apart
from the general ground mentioned above, the authorities did not provide the
applicant with any other details. The Court notes, furthermore, that, in breach of
domestic law, the applicant was not served with the order declaring his presence to
be undesirable until after he had been deported.
The Court attaches weight to the fact that the Bucharest Court of Appeal confined
itself to a purely formal examination of the order of the public prosecutor’s office. In
that connection the Court observes that the public prosecutor’s office did not provide
the Court of Appeal with any details of the offence of which the applicant was
suspected and that that court did not go beyond the assertions of the public
prosecutor’s office for the purpose of verifying that the applicant really did represent a
danger for national security or public order.
As the applicant did not enjoy before the administrative authorities or the Court of
Appeal the minimum degree of protection against arbitrariness on the part of the
authorities, the Court concludes that the interference with his private life was not in
accordance with “a law” satisfying the requirements of the Convention (see, mutatis
mutandis, Al-Nashif, cited above, § 128)”. (para 39 – 42)
41
7.
Means of subsistence
Till the decision of 20 October 2005, published hereunder, the Court has
never expressed itself on the question as to whether it is reasonable to make
the right to family reunification dependent on conditions, like the requirement
of having sufficient means of subsistence. In the three cases, where a state
obligation to accept a right to legal residence for purposes of family
reunification was established (Şen, Tuquabo-Tekle and Rodriges da
Silva/Hoogkamer) the Court did not pay any attention to that issue apart from
its very short consideration in the Şen judgment, that it was not relevant
whether the parents had taken financial responsibility for their daughter left
behind in Turkey: “Il en va de même de la circonstance que les requérants
n’ont pas pu établir avoir participé financièrement à la prise en charge de
leur fille” (para. 40).
From the Gül judgment, it could have been deduced that an obligation for the
host state to admit family reunification on its soil would exist whenever there
are, objectively and strictly speaking, obstacles standing in the way of
enjoying family life elsewhere. In the case of Haydarie, the applicants had
argued that there may be a situation in which the Netherlands would be the
only place where family life would be possible. The Court, however, does not
explicitly deal with this aspect.
8876/04 Haydarie v. The Netherlands, 20 October 2005
Mother and four children, three children in Pakistan whose residence permit was
refused because family tie had not been demonstrated and the mother did not comply
with the income requirement, regarding family life no distinction between two living
in the Netherlands and three in Pakistan. Income requirement not unreasonable.
Inadmissible.
“The Court notes that in the present case the crucial question is whether it could be
expected from the first applicant to comply with the income requirement under the
domestic immigration rules. On this point, the Court notes that, in order to meet this
requirement, the applicant should have an independent and lasting income of an
amount equal to benefits under the General Welfare Act to which she was entitled.
The Court further understands that the Netherlands authorities would not maintain
this income requirement if the first applicant could demonstrate to have made, during
a period of three years, serious but unsuccessful efforts to find gainful employment,
also bearing in mind the possible existence of an objective obstacle for the applicants’
return to Afghanistan. In principle, the Court does not consider unreasonable a
requirement that an alien who seeks family reunion must demonstrate that he/she
has sufficient independent and lasting income, not being welfare benefits, to provide
for the basic costs of subsistence of his or her family members with whom reunion is
sought.
As to the question whether such a requirement was reasonable in the instant case,
the Court considers that it has not been demonstrated that the applicant has in fact
actively sought gainful employment after 10 October 2000 when she became entitled
to work in the Netherlands. Although it is true that her Netherlands language and
sewing courses may have been helpful in this respect, there is no indication in the
case-file that she has in fact applied for any jobs. What does appear from the casefile is that she preferred to care for her wheel-chair bound sister at home. In this
respect, the Court considers that it has not been demonstrated that it would have
been impossible for the first applicant to call in and entrust the care for her sister to
an agency providing care for handicapped persons as referred to in the Regional
Court’s judgment of 19 June 2003.”
42
43
8. Other interesting applications of Article 8
In the Niedzwiecki judgment, the Court brings the entitlement to child benefits under
the scope of Article 8, where it could also have been considered an issue of the right
to property under Article 1 First Protocol.
In the Iletmiş judgment, the Court brought a right to freedom of movement “droit de libre
circulation”, as laid down in the Fourth Protocol, under the aegis of Article 8 as well. The
facts of the case were quite similar to the circumstances of Riener v. Bulgary, 23 May 2006
(46343/99).
58453/00 Niedzwiecki v. Germany, 25 October 2005
One Polish national and a two Polish nationals. Different treatment of parents who
were and who were not in possession of a stable residence permit. Lacked sufficient
justification, violation of article 14 in conjunction with article 8 in both cases.
“By granting child benefits, States are able to demonstrate their respect for family life
within the meaning of Article 8 of the Convention; the benefits therefore come within
the scope of that provision (see, mutatis mutandis, Petrovic, cited above, § 30). It
follows that Article 14 – taken together with Article 8 – is applicable.” (para 31)
29871/96 Iletmiş v. Turkey, 6 December 2005
Turkish national, passport was confiscated during criminal proceedings that lasted
from 1984 until 1999, violation of article 8.
“La Cour considère que la mesure de confiscation et de non restitution, pendant des
années, du passeport du requérant par les autorités administratives constitue une
ingérence dans l’exercice de son droit au respect de la vie privée, dans la mesure où
elle a constaté des liens personnels suffisamment forts qui risquaient d’être
gravement affectés par l’application de cette mesure (voir, mutatis mutandis,
Moustaquim c. Belgique, arrêt du 18 février 1991, série A no 193, p. 18, § 36, Dalia
c. France, arrêt du 19 février 1998, Recueil des arrêts et décisions 1998-I, p. 91, §
52, et Amrollahi c. Danemark, no 56811/00, § 33, 11 juillet 2002). Elle observe à cet
égard que le requérant vivait en Allemagne depuis dix-sept ans. Il s’y était rendu à
l’âge de vingt-deux ans, pour faire des études universitaires. Depuis, il s’était marié,
ses deux enfants étaient nés en Allemagne et la famille vivait dans ce pays, où les
époux exerçaient le métier de travailleur social.” (para 42)
(…)
“Toutefois, selon la Cour, plus la procédure se prolongeait sans marquer d’évolution,
et plus l’absence de toute preuve à la charge du requérant, perdurait, plus l’intérêt lié
au but légitime perdait de son poids. Parallèlement, plus le temps passait, plus
l’intérêt lié au droit à la libre circulation du requérant, qui est, en l’espèce, un aspect
de son droit au respect de la vie privée, l’emportait sur les impératifs de la sécurité
nationale ou la prévention des infractions pénales.” (para 47)
44
9.
Article 3 protection of family members
In three cases, the Court has stressed the impact of treatment prohibited by Article 3
on the family of afflicted persons, by considering this article violated not only with
regard to the person or persons directly affected, but also with regard to their family.
13284/04 Bader v. Sweden, 8 November 2005
Syrian national, death sentence and unfair trial in Syria, deportation order to Syria in
violation of article 3. On the effect of the deportation on the family members the
Court states:
“Furthermore, in the instant case, it transpires from the Syrian judgment that no oral
evidence was taken at the hearing, that all the evidence examined was submitted by
the prosecutor and that neither the accused nor even his defence lawyer was present
at the hearing. The Court finds that, because of their summary nature and the total
disregard of the rights of the defence, the proceedings must be regarded as a flagrant
denial of a fair trial (see, mutatis mutandis, Mamatkulov and Askarov v. Turkey, cited
above, § 88). Naturally, this must give rise to a significant degree of added
uncertainty and distress for the applicants as to the outcome of any retrial in Syria.
In the light of the above, the Court considers that the death sentence imposed on the
first applicant following an unfair trial would inevitably cause the applicants additional
fear and anguish as to their future if they were forced to return to Syria as there exists
a real possibility that the sentence will be enforced in that country (see Öcalan v.
Turkey, cited above, § 169).” (para 47)
24245/03 D. v. Turkey, 22 June 2006
Iranian nationals, deportation to Iran, where they ran the risk of undergoing illtreatment, violation of article 3 when enforced. The Court refers to Bader:
“En effet, il suffit de constater qu’en l’espèce, la situation de A.D. et P.D. ne diffère
guère de celle des requérants dans l’affaire Bader et autres c. Suède susmentionnée,
où M. K.B.M Kurdi, son épouse H.A.M. Kanbor et leur deux enfants mineurs
dénonçaient, au regard notamment des article 2 et 3 de la Convention, un risque
imminent d’exécution de la peine de mort infligée au premier requérant, si celui-ci
devait être renvoyé en Syrie (arrêt précité, §§ 1 et 34).
Pour les mêmes raisons exposées dans cet exemple, la Cour considère qu’une
éventuelle expulsion de P.S., emporterait également violation de l’article 3 dans les
chefs de A.D. et P.D. (voir Bader et autres, précité, §§ 1, 34, 47 in fine et 48).”(para
56)
13178/03 Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, 12 October 2006
Detention in Belgium and refoulement by Belgium of a 5-years old Congolese girl
wishing to reunite with her mother, having the refugee status in Canada. The girl
travelled with her uncle, having the Dutch nationality, who could not show the
Belgian authorities, when passing them in transit, that he had the necessary documents
for the child. Violation of Article 3, not only vis-à-vis the detained child but also with
regard to the mother residing in Canada.
” La Cour rappelle en premier lieu que l'article 3 de la Convention confère une
protection absolue, indépendante de l'attitude éventuellement critiquable d'un
requérant (voir, mutatis mutandis, Soering, précité, § 88). Elle ne peut dès lors suivre
le Gouvernement belge qui, se prévalant de l'attitude de la première requérante,
semble remettre en doute la possibilité pour la Cour de parvenir à un constat de
violation.
La Cour rappelle en second lieu que le point de savoir si un parent est victime des
mauvais traitements infligés à son enfant dépend de l'existence de facteurs
particuliers conférant à la souffrance du requérant une dimension et un caractère
distincts du désarroi affectif que l'on peut considérer comme inévitable pour les
proches parents d'une personne victime de violations graves des droits de l'homme.
45
Parmi ces facteurs figurent la proximité de la parenté – dans ce contexte, le lien
parent-enfant sera privilégié –, les circonstances particulières de la relation, la
mesure dans laquelle le parent a été témoin des événements en question et la
manière dont les autorités ont réagi à des réclamations des requérants. L'essence
d'une telle violation réside dans les réactions et le comportement des autorités face à
la situation qui leur a été signalée. C'est notamment au regard de ce dernier élément
qu'un parent peut se prétendre directement victime du comportement des autorités
(mutatis mutandis, Çakıcı c. Turquie [GC], no 23657/94, CEDH 1999-IV, § 98, et
Hamiyet Kaplan et autres c. Turquie, no 36749/97, § 67, 13 septembre 2005).
S'agissant de l'attitude des autorités belges à l'égard de la première requérante,
l'analyse des éléments du dossier révèle que les autorités belges se sont bornées à
avertir celle-ci de la détention de sa fille et à lui transmettre un numéro de téléphone
auquel elle pouvait la joindre. La Cour ne doute pas que la première requérante a, en
tant que mère, subi une souffrance et une inquiétude profondes du fait de la
détention de sa fille. Les circonstances de la cause amènent la Cour à conclure que
le seuil de gravité exigé par l'article 3 de la Convention a été atteint en l'espèce. ”
(para 60 - 62)