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FIRST
SECTION
CASE OF
CHAIR AND J. B. v. GERMANY
(Application
no. 69735/01)
JUDGMENT
STRASBOURG
6 December
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Chair and J. B. v. Germany,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mrs R. Jaeger, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 15 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 69735/01) against the Federal
Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Moroccan national, Mr
Abdellatif Chair, and a German national, Mrs J. B. (“the
applicants”), on 11 August 2000.
The President of the
Chamber acceded to the second applicant's request not to have her
name disclosed (Rule 47 § 3 of the Rules of Court).
- The
applicants were represented by Mr W. Schindler, a lawyer practising
in Hanover. The German Government (“the Government”) were
represented by their Agent, Mrs A. Wittling-Vogel,
Ministerialdirigentin, of the Federal Ministry of Justice.
- The
applicants alleged, in particular, that the first applicant's
expulsion from German territory had violated their right to respect
for their family life.
- In
a decision of 14 February 2006 the Court declared the application
partly admissible. It decided to join to the merits of the case the
examination of the Government's objection concerning the exhaustion
of domestic remedies.
-
The Chamber having decided, after consulting the parties, that no
hearing on the merits was required (Rule 59 § 3 in fine),
the parties replied in writing to each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. General background
- The
first applicant was born in 1962 and lived in Morocco until 1987.
- In
1987 he left Morocco in order to complete his chemistry studies in
France. In June 1989 he went to Germany in order to obtain a
doctorate in chemistry. From July 1993 to December 1994 he worked as
a university assistant at Marburg University. In 1995 he moved to
Hanover, where two of his brothers were living and where he worked in
one of his brother's enterprises. Subsequently, he worked in his own
kiosk. In 1998 he started training with a view to becoming an expert
in logistics.
- In
1990 the competent authorities granted the first applicant a
temporary residence permit, which was prolonged first until March
1994 and then until the end of April 1997.
- On
13 March 1997 the first applicant married the second applicant. His
residence permit was thus prolonged until 14 May 2000.
- In
May 1997 a daughter was born to the applicants.
2. Proceedings for criminal offences
- On
13 January 1998 the Hanover District Court (Amtsgericht)
convicted the first applicant of aggravated theft and sentenced him
to fifteen daily fines of thirty German marks.
- On
14 January 1999 the applicant was arrested and subsequently detained
on remand.
- On
21 April 1999 the Hanover Regional Court (Landgericht)
convicted the first applicant of rape. According to the facts
established by the Regional Court, on 11 December 1998 he had forced
a university student at knifepoint to engage in sexual contact with
him. It sentenced him to five years and three months' imprisonment.
In its reasoning, the Regional Court considered in particular the
fact that the first applicant had for the most part confessed his
crime, that he had used the knife only once at the beginning of the
act and that he had lived an orderly life in spite of his
difficulties in finding employment. The Regional Court took further
into account that the crime had to a large part been committed owing
to the first applicant's considerable intoxication and his growing
frustration emanating from the lack of sexual contact with his wife.
However, having regard to the fact that the first applicant had
performed two acts of sexual coercion, that the incident had lasted
for an overall duration of forty minutes and that he had constantly
used force against his victim by exerting pressure with his arm and
his hand, respectively, these factors precluded further mitigation of
sentence.
3. Execution of the applicant's sentence
- Following
his conviction, the first applicant served his sentence in Hanover
Prison.
- On
14 July 2000 the psychological expert P. submitted an expert opinion
to the prison authorities. He considered that the first applicant had
acknowledged his crime and was willing to change, in particular with
regard to his alcohol consumption and his sexual conduct. There was
no indication of sexual deviance. The expert further noted that the
first applicant's upbringing in a traditional Moroccan family had led
to a very restricted concept of masculinity, which he had not been
able to revise.
His relationship with the second applicant had
been very burdened by the fact that the second applicant had refused
sexual contact with him following the birth of their daughter and
that he had not been able to talk to her about this. The expert
further noted that there had been other situations prior to the rape
where the applicant had harassed women, although such situations had
not led to the commission of a sexual offence. He concluded that the
first applicant was open-minded and self-critical. He was able to
comprehend the circumstances which had led to the commission of the
crime and to search for ways of overcoming his problems. Provided the
first applicant engaged in pertinent couple therapy and managed to
give up his illusionary concept of masculinity, a positive legal
prognosis could be attributed to him.
- According
to the records of the regular conferences on the planning of sentence
execution (Vollzugsplankonferenz), the first applicant
attempted to instigate couple therapy. In February 2001, however, it
was noted that the applicant's wife had expressed that she was
experiencing great difficulties with her own situation, which she
preferred to solve on her own before dealing with her husband's
problems. She was uncertain whether she wished to continue the
relationship.
- From
June 1999 until February 2000 the applicant attended meetings of
Alcoholics Anonymous.
- In
the record dated 2 November 2001 the prison authorities noted that,
in August 2001, the second applicant had had a conversation with a
prison social worker, who gained the impression that she was not
interested in meeting her husband and that she could not cope with
the situation.
The second applicant had not made use of her
visiting rights for one year.
In September 2001 the second
applicant informed the social service by telephone that she agreed to
meet her husband in spite of her doubts.
- The
participants in the conference of 2 November 2001 noted that the
first applicant had been undergoing psychotherapy. They had, however,
not gained the impression that he had made sufficient progress, as he
was continuing to exert pressure on his wife and was trying to
control her. It was further noted that the applicant's conduct during
his detention was impeccable.
- In
the record dated 28 November 2002 it was noted that the first
applicant had been granted leave to visit his wife and daughter on
seven occasions since May 2002. The staff accompanying the visits
considered that the state of the applicants' marriage was still
unclear. While there had been a certain rapprochement between the
couple, the spouses still did not communicate much with each other,
but rather via the child. The second applicant was not opposed to her
husband's continuing to visit their daughter. It still appeared,
however, that she wanted a separation.
The participants in the
conference further consulted three psychological experts, including
P., who considered that the applicant had not resolved his problems
as regards his partnership and social contact with females.
All
three considered, however, that the danger of recidivism was low.
4. Expulsion proceedings
- On
28 July 2000 the Municipal Public Order Authority (Ordnungsamt)
of Hanover ordered the first applicant's expulsion to Morocco.
Deportation to Morocco was announced upon his release from prison.
Although the applicant was in possession of a valid residence permit
and married to a German national, they considered that his conviction
for a serious crime made it necessary to expel him under sections 47
§ 1 and 48 § 1 of the Aliens Act
(Ausländergesetz, see Relevant domestic law below). The
circumstances of the present case left no room for any discretion on
the part of the German authorities. The circumstances leading to his
last conviction proved that he possessed a considerable amount of
criminal energy. As a recidivist (Wiederholungstäter),
there was a risk that the first applicant would commit further
criminal acts in the future. The first applicant's assumption that
his victim had willingly engaged in sexual contact with him gave rise
to doubts as to whether he had fully comprehended and absorbed the
extent of his crime.
- According
to the authorities, the long period spent in Germany could not
preclude his expulsion, as his criminal offences had shown that he
had so far not adapted to the living conditions in Germany. Neither
his marriage to a German national, nor the fact that they had a
child, could lead to a different conclusion in view of the
seriousness of his crime.
- On
29 January 2001 the Hanover District Council (Bezirksregierung)
rejected an objection lodged by the applicant.
- On
13 February 2002 the Hanover Administrative Court
(Verwaltungsgericht) confirmed the deportation order of
28 July 2000. Having regard to the reasons given for the first
applicant's criminal conviction, it found that given the seriousness
of his crime, his expulsion was necessary in the interest of general
deterrence (Generalprävention).
It also considered
the expulsion justified in this particular case.
The
Administrative Court did not view the first applicant as a
recidivist, as his prior conviction for theft could not lead to the
conclusion that he would continue to commit sexual offences. However,
although the psychological expert P. had given the first applicant a
positive social prognosis, a positive legal prognosis could only be
given on condition that the first applicant engaged in successful
therapy for couples and took leave of his “illusory concept of
masculinity”. At the relevant time in January 2001 when the
District Council gave its decision on the applicant's objection,
these requirements had not been met.
- Despite
the first applicant's high professional qualifications and the fact
that he had otherwise lived an orderly life, the two criminal
offences committed in Germany attested to the fact that he had not
succeeded in fully integrating himself into German society. This
finding was also based on P.'s statement that there had been other
situations prior to the rape where the first applicant had harassed
women, even if such situations had not led to the commission of a
sexual offence. If the first applicant did not learn how to deal
adequately with problems and conflicts through pertinent therapy, the
Administrative Court could not rule out the possibility that he might
again commit criminal acts.
- The
Administrative Court further pointed out that, according to the legal
practice in Germany, the existence of family ties alone could not
preclude the first applicant's expulsion. In any event, at the time
of the expulsion decision, there were severe doubts as to the
stability of the applicants' marriage. It was not certain to what
extent the second applicant knew about the details of the crime
committed by her husband.
The relationship between the spouses
was considered to be problematic.
The second applicant had also
not reacted to an invitation to state her views on her husband's
expulsion. The first applicant had not substantiated why it was
necessary for his wife and child that he remain in Germany, in
particular as his wife financially supported the family and had,
already prior to the first applicant's imprisonment, arranged for
their daughter to be cared for by a third person while she was at
work.
- The
daughter's interest in her father's remaining in Germany could also
not be considered as more important than the public interest in his
expulsion. The right to have contact with his daughter was only
protected in so far as that right had been exercised in the past.
Despite regular meetings between the applicant and his daughter,
which were apparently being continued, there was no indication that
the daughter depended on these contacts. Having regard to the long
periods of time which had elapsed between the visits and the fact
that the daughter had not lived with the applicant since his arrest
more than three years earlier, it appeared that they had a
relationship based merely on occasional encounters
(Begegnungsgemeinschaft). Under these circumstances, the
applicant had failed to substantiate that his ties with his
daughter amounted to a strong parent-child relationship that would
warrant his remaining in Germany.
- On
28 May 2002 the Lower Saxony Administrative Court of Appeal
(Oberverwaltungsgericht) upheld that decision and rejected the
first applicant's request for leave to appeal.
- On
12 December 2002 the Federal Constitutional Court refused to accept
the applicant's complaint for adjudication.
5. Further developments
- On
13 January 2003 the first applicant lodged a request for an interim
order with the aim of obtaining a temporary suspension of deportation
(Duldung). On 6 February 2003 the Hanover Administrative Court
dismissed this request, stating firstly that his expulsion was not
imminent as the first applicant was still serving his prison
sentence. In any event, the applicant's request was unfounded.
Referring to its own judgment of 13 February 2002, which had
been upheld by the Administrative Court of Appeal, the Administrative
Court held that the deportation order was in accordance with the law
and that there was no cause for a suspension of the deportation. On
26 February 2003 the first applicant lodged an appeal. Following
consultation of the case file, the applicant's counsel withdrew this
appeal on 10 March 2003.
- On
27 February 2003 the Hanover Regional Court, sitting as a
post-sentencing chamber (Strafvollstreckungskammer),
ordered the first applicant's release on probation. Based on
psychological expert reports and on the submissions of the prison
authorities, the Regional Court concluded that if the first
applicant continued to abstain from abuse of alcohol, the risk that
he might commit further crimes was comparatively low. It assumed that
the four years spent in prison may have contributed to a complete
cure from his former addiction and considered that he had
comprehended the extent of his crime. While admitting that his
relationship with the second applicant had probably deteriorated
during the time spent in prison, the Regional Court considered it
noteworthy that the couple had so far not divorced, nor had either of
the spouses petitioned for a divorce.
- Following
the first applicant's release from prison on 2 April 2003 the
applicants lived together with their child. According to the
applicants' submissions, they started to follow couple therapy in
March 2004.
On 15 March 2004 the Kingdom of Morocco, on the
Municipal Public Order Authority's request, issued a passport
substitute document in order to allow the first applicant's
deportation. After that the first applicant left his family and went
into hiding.
- On
18 March 2004 the applicant filed a request with the Municipal
Authority to set a time-limit on the exclusion from German territory,
which was a legal consequence of his expulsion.
- On
24 July 2004 the applicant was arrested and on
16 September 2004
he was deported to Morocco.
- On
9 August 2005 the Municipal Public Order Authority of Hanover limited
the applicant's exclusion from the German territory to twelve years
from the time of deportation, that is until 16 September 2016.
The
applicant's request for an earlier time-limit was rejected. The
applicant was further granted the option to apply for a fresh
examination of his request in 2013.
- In
February 2006 the first applicant re-entered German territory.
On
16 March 2006 he was arrested on suspicion of theft accompanied by
violence committed under the influence of alcohol. According to
police investigations, he had reached into a cash register in a bar
in order to procure the means to acquire more alcohol. The applicant
remained in detention pending deportation to Morocco.
- By
a letter of 13 February 2007 the applicants' counsel informed the
Court that the second applicant wished to withdraw her complaint.
II. RELEVANT DOMESTIC LAW
- The
rights of entry and residence for foreigners were, at the relevant
time, governed by the Aliens Act (Ausländergesetz).
Under
section 47 § 1, no. 1, of the Aliens Act, a foreigner was to be
deported when he had been sentenced to a minimum of three years'
imprisonment for having wilfully committed one or more criminal
offences. If he was married to a German citizen, a foreigner could
only be deported if serious reasons of public safety and order
justified his expulsion (section 48 § 1). This was
generally the case where section 47 § 1 was applicable.
- Under
section 8 § 2, a foreigner who had been deported was not
permitted to re-enter German territory. A time-limit on the exclusion
period was usually (in der Regel) granted upon an application
by the deportee.
- Section
53 § 4 stipulated that a foreigner could not be deported if such
deportation would not be authorised under the European Convention on
Human Rights.
- Under
section 55 § 2, a foreigner could be granted a temporary
suspension of deportation (Duldung) for as long as there were
legal or factual reasons making his deportation impossible.
- The
suspension of deportation did not affect the foreigner's duty to
leave the country. The time-limit for such a suspension could not
exceed one year, but it was renewable (section 56 §§ 1-2).
- Since
1 January 2005 the entry and residence rights of foreigners have been
governed by the Residence Act (Aufenthaltsgesetz).
THE LAW
I. AS REGARDS THE SECOND APPLICANT
- The
Court notes that in a letter of 13 February 2007 the applicants'
counsel informed the Court that the second applicant wished to
withdraw her complaint.
- The
Court finds no reasons of a general character affecting the
observance of the Convention that would necessitate a further
examination of her complaint, and thus decides to strike out the
application in so far as it concerns the complaints of the second
applicant, in accordance with Article 37 § 1 (a) of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
first applicant (“the applicant”) complained that his
expulsion to Morocco had interfered with his right to the enjoyment
of his family life.
He relied on Article 8 which, in so far as
relevant, reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society...for the prevention of disorder or crime...or for the
protection of the rights and freedoms of others.”
A. The Government's objection of non-exhaustion of
domestic remedies
- The
Government submitted that the applicant had failed to exhaust
domestic remedies as he had not appealed against the decision of the
Hanover Administrative Court of 6 February 2003 which
denied him a temporary suspension of deportation. They argued that
such a suspension could have effectively prevented a separation of
his family.
- The
applicant claimed that he had withdrawn his appeal against the
decision of 6 February 2003 because it did not have any prospect of
success. He further pointed out that a suspension of deportation did
not affect the validity and enforceability of the deportation order.
- The
Court does not consider it necessary to rule on the Government's
preliminary objection, as it considers that there has been no
violation of Article 8 of the Convention for the reasons set out
below.
B. The merits of the complaint
1. The parties' submissions
- The
applicant submitted that the deportation order had interfered with
his right to enjoy his family life, without being justified under
paragraph 2 of Article 8. He pointed out that he had lived with his
wife and their child before and following his detention. His wife and
daughter could not reasonably be expected to follow him to Morocco
and occasional contacts were insufficient to maintain the family
relationship. He further stressed that he had not committed any
further offences following his release from prison and that his
expulsion would deprive the couple of the possibility of undergoing
pertinent therapy and thus solving the problems which had initially
led to the offence in question.
- The Government accepted that the relationship between
the applicant and his wife and child fell within the ambit of Article
8 § 1 of the Convention. They questioned however whether the
deportation order itself could be regarded as an interference with
this right, because the separation of the family was not affected by
the deportation order as such, but by the actual deportation. Even
assuming there had been an interference with the applicant's rights
under Article 8 § 1, the Government regarded this
to be justified under paragraph 2 of that same provision. In this
connection they stressed the seriousness of the crime the applicant
had committed. They further pointed out that the applicant had
already been twenty-seven years' old on his arrival in Germany and
had undisputedly maintained close family ties with Morocco. On the
other hand, the ties between the spouses had become loose as a result
of the imprisonment and the fact that the second applicant had
refused any contact with the first applicant between November 2000
and November 2001.
- With respect to the decision on the time-limit for the
applicant's exclusion, the Government pointed out that this was a
separate administrative act, against which the applicant could have
appealed independently. As he had not lodged an appeal against the
Hanover Municipal Public Order Authority's decision of 9 August 2005,
he had not exhausted domestic remedies in this respect.
- The Government finally alleged that the applicant's
behaviour following his illegal re-entry into German territory in
2006 had made it clear that he continued to lack consciousness of his
criminal behaviour and the consequences associated therewith.
2. The Court's assessment
- The
Court notes that it is not in dispute that the relationship between
the applicant, his wife and their child falls within the ambit of
Article 8 of the Convention. Given the considerable time spent by the
applicant in Germany and the fact that his expulsion severed the
existing family ties between him and his wife and their daughter, the
Court finds that the deportation order interfered with the
applicant's private and family life within the meaning of Article 8
§ 1.
- The
Court further notes that the applicant's expulsion was based on the
pertinent provisions of the Aliens Act and pursued a legitimate aim,
namely public safety and the prevention of disorder or crime. It
therefore remains to be determined whether the measure imposed on the
applicant was “necessary in a democratic society” for the
achievement of these aims.
- The
Court reiterates that the Convention does not guarantee the right of
an alien to enter or to reside in a particular country and that a
State is entitled, subject to its treaty obligations, to control the
entry of aliens into its territory and their residence there. In
pursuance of their task of maintaining public order, Contracting
States have the power to expel aliens convicted of criminal offences.
However, their decisions in this field must, in so far as they may
interfere with a right protected under paragraph 1 of Article 8, be
in accordance with the law and necessary in a democratic society,
that is to say justified by a pressing social need and, in
particular, proportionate to the legitimate aim pursued (see, among
many other authorities, Üner v. the Netherlands [GC], no.
46410/99, § 54, ECHR 2006 ...).
- Accordingly,
the Court's task in the present case consists in ascertaining whether
the German authorities, by expelling the applicant from German
territory, 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 crime, on the other.
- The
Court has reaffirmed that the following criteria should apply in all
cases concerning settled migrants when assessing whether an expulsion
measure was necessary in a democratic society and proportionate to
the legitimate aim pursued (see Boultif v. Switzerland, no.
54273/00, § 40, ECHR 2001 IX, and Üner,
cited above, §§ 57-60):
- the
nature and seriousness of the offence committed by the applicant;
- the
length of the applicant's stay in the country from which he or she is
to be expelled;
- the
time elapsed since the offence was committed 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, and
other factors expressing the effectiveness of a couple's family life;
- whether
the spouse knew about the offence at the time when he or she entered
into a family relationship;
- whether
there are children of the marriage, and if so, their age; and
- the
seriousness of the difficulties which the spouse is likely to
encounter in the country to which the applicant is to be expelled.
- In
the Üner judgment (cited above, § 58), the Court
further made explicit the following two criteria:
- 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.
- The Court further considers that it has to make its
assessment in the light of the situation prevailing when the
deportation order became final (see El Boujaïdi v. France,
judgment of 26 September 1997, Reports of Judgments and Decisions
1997 VI, p. 1990, § 33; Yildiz v. Austria,
no. 37295/97, §§ 34 and 44, 31 October 2002;
Yilmaz v. Germany, no. 52853/99, §§ 37
and 45, 17 April 2003; and, implicitly, Üner, cited
above, § 64). The question as to when the deportation order
became final has to be determined by applying the domestic law.
According to the domestic law, the complaint to the Federal
Constitutional Court is devised as an extraordinary remedy which does
not prevent the contested decision from becoming final. It follows
that the deportation order became final on 28 May 2002 when the
Lower-Saxony Court of Appeal rejected the first applicant's request
for leave to appeal. The Court's task is thus to ascertain whether or
not the domestic authorities had complied with their obligation to
respect the applicant's private and family life at that particular
moment, leaving aside circumstances which only came into being after
the authorities took their decision (see Yildiz, cited above,
§ 44).
- With
regard to the nature and seriousness of the offence committed by the
applicant, the Court observes that the applicant was convicted of
rape. There can be no doubt that this offence was of an extremely
serious nature, as is reflected in the prison sentence of five years
and three months imposed on him. Although the applicant had for the
most part confessed his crime, which had largely been committed owing
to his state of considerable intoxication, this could, according to
the criminal court, not lead to a mitigation of sentence, having
regard to the fact that the applicant had performed two acts of
sexual coercion, that the incident had lasted for an overall duration
of forty minutes and that he had constantly used force against his
victim.
- With
regard to the length of the applicant's stay in Germany, the Court
notes that the applicant had entered Germany at the age of
twenty-seven. By the time the deportation order became final in May
2002, he had lived there for almost thirteen years. Despite the
considerable time spent by the applicant in Germany, the Court notes
that his situation is not comparable to that of a so-called
“second-generation immigrant”, as he had arrived in
Germany as an adult and had spent his childhood and youth and the
first part of his university studies in Morocco. There can be no
doubt that he had retained sufficient social and cultural ties with
his country of origin which would allow him to reintegrate into
Moroccan society.
- As
to the applicant's conduct since the offences were committed, the
Court notes that the applicant remained in prison until the
deportation order became final. While the applicant had psychotherapy
in an attempt to solve his personal problems, he had not managed to
engage successfully in couple therapy – which appears to be
explained by the fact that his wife did not feel ready for this. The
Court further notes that the three psychological experts consulted by
the prison authorities before the conference on 28 November 2002
considered that he had not completely come to terms with the problems
which had led to the commission of his crimes, even though they
deemed the risk of recidivism to be low (see paragraph 20 above).
- With
regard to the applicant's family situation, the Court notes that the
applicant and his wife had been married since March 1997. The
spouses' relationship had been considerably strained by his criminal
conviction. By the time the deportation order became final, it was
not clear whether the applicant's wife would continue the
relationship or seek a separation.
- With
regard to the applicant's relationship with his daughter, the Court
notes that the daughter was born within a marital union and that the
family lived together until the applicant's arrest in January 1999,
when the child was one and a half years' old. While contacts between
the father and his child were rare in the earlier part of his prison
term, the applicant received and paid regular visits to his daughter
during the second part of his prison term.
- With
regard to the possibility of maintaining the parental relationship
with his daughter following his deportation, the Court notes that the
child was living with the applicant's wife. As it was uncertain at
the relevant time if the applicant's wife would continue the
relationship, there was no realistic prospect that she would follow
him to Morocco, thus allowing them to maintain the father-child
relationship. The Court further considers that the domestic
authorities have not established whether the applicant's wife or
their daughter speak the Arabic language. Even if the applicant's
wife had been ready to join her husband in Morocco, she would
inevitably have encountered very serious difficulties, bearing in
mind that she had been the main provider of the family (see, mutatis
mutandis, Amrollahi v. Denmark, no. 56811/00, § 41,
11 July 2002). It follows that the applicant's expulsion to Morocco
necessarily entailed his separation from his daughter.
- The
Court appreciates that the applicant's expulsion had far-reaching
consequences, in particular for his relationship with his young
daughter. However, having regard to the nature and seriousness of the
offence committed by the applicant, and bearing in mind that the
psychological experts, at the relevant time, could not entirely rule
out the danger of recidivism, the Court cannot find that the
respondent State attributed too much weight to its own interests when
it decided to impose that measure.
Accordingly,
there has been no violation of Article 8 of the Convention.
FOR THESE REASONS, THE COURT
- Decides unanimously to strike out the
application in so far as it concerns the complaints of the second
applicant;
- Decides by six votes to one that it is not
necessary to rule on the Government's preliminary objection as to the
non-exhaustion of domestic remedies;
- Holds by six votes to one that there has been no
violation of Article 8 of the Convention;
Done in English, and notified in writing on 6 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Mrs Steiner
is annexed to this judgment.
C.R.
S.N.
DISSENTING OPINION OF JUDGE STEINER
I
voted for finding a violation of Article 8 as I consider that the
domestic authorities, when ordering the applicant's expulsion from
German territory, did not sufficiently take into account the
applicant's interest in maintaining his relationship with his
daughter, who was five years old by the time the deportation order
became final. I consider the applicant's separation from his daughter
to be all the more serious as the child needed to remain in contact
with her father, especially because of her young age (see, mutatis
mutandis, Berrehab v. the Netherlands, judgment of
21 June 1988, Series A no. 138, § 37).
On the other hand, one has to take into account that the applicant
was convicted of a very serious crime. Having regard to these
circumstances, I would have found the measure acceptable only if the
applicant's exclusion from German territory had been, from the
outset, adequately limited in time.
Quite
apart from this, I consider that the Court should not have left the
issue of exhaustion of domestic remedies undecided (see paragraphs 47
to 49 of the judgment), but should have dismissed the Government's
preliminary objection in this respect. Having regard to the Court's
consistent case-law and to the circumstances of this particular case,
I consider that the applicant had clearly exhausted domestic remedies
in the instant case.
The Court has consistently held that an applicant who has
unsuccessfully availed himself of one appropriate remedy directly
aimed at redressing the litigious situation cannot be expected to
have had recourse to further remedies which might be in principle
available to him, but which hardly offer better chances of success
(see Baumann v. France, no. 33592/96, § 46, 22 May 2001;
De Moor v. Belgium, judgment of 23 June 1994, Series A
no. 292 A, § 50; A. v. France, judgment of
23 November 1993, Series A no. 277 B, § 48; Müslim
v. Turkey (dec.), no. 53566/99, 1 October 2002; Avci v.
Belgium (dec.), no. 61886/00, 6 May 2004; Giacomelli v. Italy
(dec.), no. 59909, 15 March 2005; Vitiello v. Italy (dec.),
no. 6870/03, 5 July 2005; Paudiccio v. Italy (dec.),
no. 77606/01, 5 July 2005; and EEG-SLACHTHUIS VERBIST v.
Belgium (dec.), no. 60559/00,
10 November 2005). Accordingly,
an applicant who had unsuccessfully lodged an appeal against a
deportation order had been found not to be under an obligation to
avail himself of further possible remedies aimed at obtaining a
suspension of the deportation proceedings (see Avci, cited
above).
In
the present case, the applicant duly exhausted domestic remedies with
respect to the deportation order of 28 July 2000. In their
decisions, the domestic courts expressly denied that the applicant's
interest in the enjoyment of his family life outweighed the public
interest in his expulsion. They considered, in particular, that the
applicant's relationship with his daughter was not strong enough to
warrant his remaining in Germany.
The applicant subsequently
lodged a request for an interim order with the aim of obtaining
temporary suspension of deportation (Duldung).
The Hanover
Administrative Court, in a decision of 6 February 2003, rejected the
applicant's request, referring expressly to its own previous decision
which had been upheld by the Administrative Court of Appeal.
Under
these circumstances, I have serious doubts as to whether the
applicant was obliged to lodge a request to suspend deportation in
the first place. In any event, he could not have been reasonably
expected to pursue his appeal further against the negative decision
of the Hanover Administrative Court. Accordingly, the applicant has
to be regarded as having exhausted domestic remedies within the
meaning of Article 35 § 1 of the Convention.
