Zitieren als:
EGMR, Urteil vom 28.06.2007 - 31753/02 (Kaya) - M11564

Zum Schutz des Privat- und Familienlebens (Art. 8 EMRK) bei einer Ausweisung.

Schlagwörter: D (A), Ausweisung, Schutz von Ehe und Familie, Privatleben, Europäische Menschenrechtskonvention, EMRK, EGMR, Beurteilungszeitpunkt, Verfassungsbeschwerde, Menschenhandel, Zuhälterei, Wiederholungsgefahr, Integration, Sperrwirkung, Wirkungen der Ausweisung, Befristung, atypischer Ausnahmefall, Kaya
Normen: EMRK Art. 8; AuslG § 47 Abs. 1 Nr. 1; AuslG § 48 Abs. 1; AuslG § 8 Abs. 2

51. The Court reiterates at the outset 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 an alien 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, most recently, Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006-...).

52. As the Grand Chamber has affirmed in its Üner judgment, these principles apply regardless of whether an alien entered the host country as an adult or at a very young age, or was even born there. In particular, Article 8 of the Convention does not confer to persons who were born in a member State an absolute right not to be expelled from the territory of that State (see Üner, cited above, §§ 55-56). The Grand Chamber has further held that an alien's expulsion following his criminal conviction does not constitute double punishment, either for the purposes of Article 4 of Protocol No. 7 or in a more general way (see Üner, cited above, § 56).

53. Nevertheless, there are circumstances where the expulsion of an alien will give rise to a violation of Article 8 of the Convention and it is evident that the Court will have regard to the special situation of aliens who have spent most, if not all, of their childhood in the host country, where they were brought up and received their education (see for example Üner, cited above, § 58).

54. The relevant criteria to be used in order to assess whether an expulsion is necessary in a democratic society and proportionate to the legitimate aim pursued are the following (Boultif v. Switzerland, no. 54273/00, § 40, ECHR 2001-IX; 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.

55. In the Üner judgment (cited above, § 58), the Court made further 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.

b) Application of these principles to the instant case

56. Turning to the present case, the Court notes that the Government have not contested that the expulsion order imposed on the applicant constituted an interference with his private life. However, they considered that he could not claim to have had a family life within the meaning of Article 8 § 1. The Court notes, firstly, that the applicant was born in Germany, where he had legally resided, attended school and completed vocational training. It follows that the applicant's expulsion has to be considered as an interference with his right to respect for his private life guaranteed in paragraph 1 of Article 8.

57. The question whether the applicant also enjoyed family life within the meaning of Article 8 has to be determined with regard to the position at the time the exclusion 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 expulsion 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 expulsion order became final on 7 March 2001 when the Baden-Württemberg Administrative Court of Appeal refused to grant the applicant leave to appeal.

58. With regard to the applicant's relation to his family of origin, the Court notes that the applicant had been born in Germany, where he lived with his parents and sister until his arrest in January 1999. During his prison term, he kept in touch with his family, at least by writing letters to his mother. He further asserted that he played a special role in the family following the tragic death of his brother. Under these circumstances, the Court finds that the applicant's expulsion interfered to a certain degree also with his right to respect for his family life.

62. With regard to the nature and gravity of the offences committed by the applicant, the Court notes that these were very serious, including two attempts of aggravated trafficking in human beings, of procuration and of several counts of battery. The domestic courts put special emphasis on the exceptional brutality with which the applicant had abused his victims, one of which having been his former partner.

63. As to the applicant's conduct cince the offences were committed, the Court observes that the time between his conviction and his deportation was spent in detention. While the applicant alleges that, during his detention, he had come to terms with the reasons why he had committed the offences and therefore did not pose a risk to public safety, he did not further substantiate by which means he had achieved that aim.

64. With regard to the applicant's personal ties to Germany, the Court considers at the outset that the applicant was born and spent all his life in Germany, where his parents had lawfully resided for thirty years and where he held a permanent residence status. In these circumstances, the Court does not doubt that the applicant had strong ties with Germany.

65. With regard to the applicant's ties with Turkey, the Court notes that he had visited this country only occasionally on holidays. He has, however, worked there for at least three weeks in July 1998. The Court further notes that the applicant, during his detention, wrote letters to his mother using the Turkish language. Even if it should be true that the applicant did not write these letter with his own hands, but dictated them to a cell-mate, this is an indication that the use of the Turkish language was not uncommon in the applicant's family of origin.

66. With regard to the applicant's relation to his family of origin, the Court notes that the applicant has lived with his parents and sister until his arrest in January 1999. The Court accepts that his parents, having lost one son in a tragic accident, suffered considerably from the separation from their second son, in spite of the presence of their daughter. It has, however, not been established that the parents should not have been able to maintain the relationship by visiting their son in Turkey.

68. As to the proportionality of the impugned measure, the Court finally notes that the expulsion order issued against the applicant was not, from the outset, subject to a time-limit. In this context, the Court observes that in a number of cases it found a residence prohibition disproportionate on account of its unlimited duration (see, for instance, Ezzouhdi v. France, no. 47160/99, § 35, 13 February 2001; Yilmaz, cited above, §§ 48-49, 17 April 2003; Radovanovic v. Austria, no. 42703/98, § 37, 22 April 2004; and Keles v. Germany, no. 32231/02, § 66, 27 October 2005) while, in other cases, it has considered the limited duration of a residence prohibition as a factor speaking in favour of its proportionality (see Benhebba v. France, no. 53441/99, § 37; Jankov v. Germany (dec.), no. 35112/92, 13 January 2000; and Üner, cited above, § 65).

69. Turning to the present case, the Court notes that domestic law provided that the exclusion from German territory could, as a rule, be limited in time upon separate request (see paragraph 33 above). There is nothing to indicate in the instant case that this possibility was merely theoretical. The Court further takes note of the Government's submissions that the applicant has in the meantime fulfilled the conditions attached to the time-limit and is no longer barred from entering German territory. Thus, it cannot be said that the applicant in this specific case was left without any perspective of returning to Germany.

70. The Court appreciates that the expulsion order imposed on the applicant had a serious impact on his private life and on the relationship with his parents. However, having regard to all circumstances of the case, and in particular to the seriousness of the applicant's offences, which cannot be trivialised as mere examples of juvenile delinquency, the Court does not consider that the respondent State assigned too much weight to its own interest when it decided to impose that measure.

71. In the light of the above, the Court finds that a fair balance was struck in this case in that the applicant's expulsion was proportionate to the aims pursued and therefore necessary in a democratic society.

Accordingly, there has been no violation of Article 8 of the Convention.