SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46410/99 
by Ziya ÜNER 
against the Netherlands

The European Court of Human Rights (Second Section), sitting on 1 June 2004 as a Chamber composed of

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr L. Loucaides
 Mr C. Bîrsan
 Mr K. Jungwiert
 Mrs W. Thomassen, 
 Mr M. Ugrekhelidze, judges
and Mr T.L. Early, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 4 August 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Court's partial decision of 26 November 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Ziya Üner, is a Turkish national, who was born in 1969 and is currently residing in Eskişehir, Turkey. He is represented before the Court by Mr R. Dhalganjansing, a lawyer practising in The Hague.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant came to the Netherlands with his mother and two brothers in 1981, when he was 12 years old, in order to join his father who had already been living there for 10 years. He was granted a residence permit (vergunning tot verblijf) which was valid for one year at a time, and, in 1988, he obtained a permanent residence permit (vestigingsvergunning).

On 18 January 1989 the applicant was convicted by the single-judge chamber of the Almelo Regional Court (arrondissementsrechtbank) of not having complied promptly with an order given by a civil servant to vacate premises given over to administrative use where he was staying unlawfully (breach of the peace, lokaalvredebreuk), and fined 200 Netherlands guilders (NLG – 90 Euros (EUR)). The same court convicted him on 30 May 1990 of a violent offence against persons, committed in public (openlijke geweldpleging), and sentenced him to a fine of NLG 350 (EUR 159) and a suspended term of imprisonment of two weeks.

In 1991 the applicant entered into a relationship with a Dutch national. They started living together in around June 1991. A son was born to the couple on 4 February 1992.

On 30 June 1992 the applicant was convicted by the Arnhem Court of Appeal (gerechtshof) of a violent offence against persons, committed in public, and sentenced to 80 hours of community service (in lieu of six months' imprisonment).

During the second pregnancy of the applicant's partner, the relationship began to suffer tensions. In order to alleviate the situation, the applicant moved out for a few months in November 1992, but he remained in close contact with his son. After his partner suffered a miscarriage in January 1993, the applicant immediately moved back in with her.

On 21 January 1994 the Arnhem Court of Appeal convicted the applicant of manslaughter (doodslag) and assault (zware mishandeling) committed in May 1993 and sentenced him to seven years' imprisonment. Whilst serving this prison sentence, from 17 May 1993 until 14 January 1998, the applicant took courses in computer skills, administration and accounting, and he also obtained a retailer's certificate (middenstandsdiploma). He further took courses in order to qualify as a sports instructor. His partner and son visited him in prison at least once a week and regularly more often. A second son was born to the applicant and his partner on 26 June 1996, whom he also saw every week. Both his children have Dutch nationality and have been recognised (erkend) by the applicant. Neither his partner nor his children speak Turkish.

By decision of 30 January 1997, the Deputy Minister of Justice (Staatssecretaris van Justitie) withdrew the applicant's permanent residence permit and imposed a ten year exclusion order (ongewenstverklaring) on him in view of his conviction of 21 January 1994 whereby he had been sentenced to seven years' imprisonment. The Deputy Minister considered that the interests of public safety and the prevention of disorder and crime outweighed the interest of the applicant in being able to continue his family life with his partner, children, parents and brothers in the Netherlands.

The applicant lodged an objection (bezwaarschrift) against this decision, arguing that the offence in question had been committed long ago in May 1993, that he had not reoffended, that there was no indication that he would reoffend, and that his partner and children could not be expected to follow him to Turkey. Following a hearing before the Advisory Commission for Aliens' Affairs (Adviescommissie voor vreemdelingenzaken) on 1 July 1997, on which occasion the applicant was assisted by an interpreter, the Deputy Minister rejected the objection on 4 September 1997 and ordered the applicant to leave the Netherlands as soon as he was released from detention.

The applicant appealed to the Regional Court of The Hague, sitting in Zwolle, submitting that, as there was no risk of him reoffending, there was no necessity to impose an exclusion order on him and that, to do so, amounted to the imposition of a second penalty.

The applicant was released from prison on 14 January 1998 and subsequently placed in aliens' detention (vreemdelingenbewaring) with a view to his deportation.

Following a hearing on 28 January 1998, the Regional Court rejected the applicant's appeal on 4 February 1998. The Regional Court did not accept the applicant's argument that such a long period of time had elapsed between the date on which his criminal conviction had become irrevocable and the date on which the exclusion order had been imposed, that the Deputy Minister should be deemed to have acquiesced in the applicant's continued residence in the Netherlands. Furthermore, the court did not discern any facts or circumstances capable of justifying a reduction of the period during which the applicant would be excluded from Netherlands territory. The applicant's claim that there was no risk of him reoffending was only based on his own statements and was not supported by the facts, given that he had also been convicted of violent offences in 1990 and 1992. In addition, it did not appear that the applicant had put down roots in the Netherlands and had become dissociated from Turkish society to such an extent that he would be unable to return to his country of origin. Finally, the Regional Court considered that the interference with the applicant's family life was justified for the prevention of disorder and crime.

The applicant was deported to Turkey on 11 February 1998. However, it appears that he returned to the Netherlands soon afterwards, as he was apprehended in that country on 29 May 1998. He was again deported to Turkey on 4 June 1998, and the request for a provisional measure, which he had lodged with the Regional Court of The Hague in order to suspend his deportation, was declared inadmissible on 24 August 1998.

On 17 September 1998 the applicant requested that the exclusion order be revoked. The Deputy Minister of Justice denied the request on 26 October 1998, as well as, on 13 April 2000, the objection which the applicant had filed against that denial. The applicant subsequently lodged an appeal, which was declared inadmissible by the Regional Court of The Hague, sitting in Zwolle, on 2 August 2000.

The applicant submitted that, prior to his deportation in 1998, he had only been back to Turkey once in order to attend the funeral of his grandmother, and that he does not speak the Turkish language apart from understanding certain expressions. He only had one uncle in Turkey with whom he had no contact.

According to a report drawn up by a psychiatrist in Turkey on 9 June 1998, the applicant was suffering psychological problems due to the fact that he was living apart from his family. In particular, the fact that he was missing his children was making him depressed. Treatment began in March 1998 and was continuing even though some improvement had been noted.

B.  Relevant domestic law

At the relevant time, the decision to withdraw a residence permit and to impose an exclusion order was taken pursuant to Articles 14 and 21 of the 1965 Aliens Act (Vreemdelingenwet 1965) as well as the policy laid down in Chapters A4 and A5 of the “1994 Circular on Aliens” (Vreemdelingencirculaire – a body of directives drawn up and published by the Ministry of Justice). Underlying this policy is the principle that the longer an alien has lawfully resided in the Netherlands – and the stronger, therefore, his or her ties with the Netherlands are assumed to be –, the more serious an offence must be before it may justify withdrawing a residence permit and excluding the alien from Netherlands territory; the authorities thus apply a sliding scale (glijdende schaal).

In accordance with this policy, a residence permit may be withdrawn and an exclusion order imposed on an alien who, at the time of committing the offence, has been lawfully residing in the Netherlands for more than 10 but less than 15 years – like the applicant in the present case – if he or she is sentenced to an unsuspended prison sentence of more than 60 months following a conviction for a serious violent crime or drug trafficking.

If an exclusion order is imposed on the basis of a conviction for a serious violent crime or drug trafficking, this order will in any event be repealed, upon request, if the alien concerned has been residing outside the Netherlands for a period of 10 years.

A person upon whom an exclusion order has been imposed is not allowed either to reside in the Netherlands or to visit it.

COMPLAINTS

The applicant complained that the withdrawal of his residence permit and the imposition of an exclusion order constituted an unjustified interference with his right to respect for his family life, as guaranteed by Article 8 of the Convention.

THE LAW

The applicant complained that, as a result of the decision not to allow him to reside in or visit the Netherlands, he was unable to exercise family life with his partner and children in that country. He invoked Article 8 of the Convention which, in so far as relevant, provides:

“1. Everyone has the right to respect for his ... family life ...

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, ...”

The Government submitted that the decision to deny the applicant permission to remain in the Netherlands and to impose an exclusion order on him had been taken on reasonable grounds. Referring to the guiding principles for cases of this nature as established by the Court (Boultif v. Switzerland, no. 54273/00, § 48, ECHR-2001), they argued that the offence of manslaughter and assault, for which the applicant had been sentenced to seven years' imprisonment, indisputably qualified as a serious violent offence of the kind which sowed unrest and feelings of insecurity in society. In addition, the applicant had been convicted on three previous occasions of offences, each more serious than the last. Given that the sliding scale principle had been applied, which involved weighing the severity of the penalty against the length of a person's stay in the Netherlands prior to the offence, the Government affirmed that due consideration had been given to the period of more than ten years during which the applicant had resided lawfully in the country.

As regards the applicant's family situation, the Government noted that the applicant had only lived with his partner from approximately June 1991 until November 1992. They therefore presumed that the effectiveness of his family life had been eroded even before his detention and deportation. After establishing a family life, the applicant had continued to commit offences of various degrees of seriousness. The Government were of the opinion that the applicant's partner and children could be expected to follow him to Turkey.

The Government further drew attention to the fact that the applicant had never expressed the wish to acquire Netherlands nationality. They were not convinced that he no longer had ties with Turkey and found it totally implausible that he would have forgotten his Turkish, bearing in mind that he had lived in Turkey up to the age of twelve.

Finally, the Government emphasised that the exclusion order was not a permanent measure and that it lapsed after ten years.

The applicant disagreed with the Government's observations relating to the extent of his family life. He had merely stopped cohabitating with his partner for a period of less than three months due to certain tensions in the relationship, but he had not broken up with his partner and he had remained in close contact with his first son during this time. Once the tensions had been dissolved, family life had flourished. His partner and son had visited him in prison very regularly, as had his second son, who had been conceived in prison.

Whilst the only relative he had in Turkey was an uncle with whom he had no contact, all his immediate family lived in the Netherlands where he had been residing since the age of twelve and into which society he had become completely integrated. So much so that he had hardly been aware of the fact that he did not hold Netherlands nationality, having rather assumed that he would acquire it automatically.

In the opinion of the applicant, the breach of Article 8 was aggravated by the fact that the Netherlands authorities had waited until after the birth of his second son before withdrawing his residence permit and imposing an exclusion order. Although it was true that the exclusion order was formally not of a permanent nature, the far-reaching consequences of this measure on his family life and the development of his children were nonetheless irreversible.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court by a majority

Declares the remainder of the application admissible, without prejudging the merits of the case.

T.L. Early J.-P. Costa 
 Deputy Registrar President

ÜNER v. THE NETHERLANDS DECISION


ÜNER v. THE NETHERLANDS DECISION