Zitieren als:
EGMR, Urteil vom 20.12.2018 - 18706/16 - M26870

Rechtmäßige Ausweisung eines "faktischen Inländers":

1. Die Ausweisung eines "faktischen Inländers" verstößt nicht gegen das Recht auf Privat- und Familienleben aus Art. 8 EMRK, wenn das Bleibeinteresse ausreichend berücksichtigt wurde.

2. Vorliegend wurde berücksichtigt, dass der Betroffene zwar in Deutschland geboren wurde und immer hier gelebt hat, jedoch nicht wirtschaftlich integriert ist und weitestgehend von Sozialleistungen gelebt hat. Auch die Einschätzung, dass er erneut straffällig werden könnte, obwohl er seit 2009 keine Straftaten mehr begangen, seine Drogenabhängigkeit und psychischen Probleme bewältigt und seine Schulausbildung abgeschlossen hat, ist angemessen. Zwar wird die Abschiebung des Betroffenen in die Türkei Auswirkungen auf seine deutsche Tochter haben. Er kann aber seine Beziehung zu ihr aufrecht erhalten. Seine frühkindliche Traumatisierung ist auch in der Türkei behandelbar. Angesichts der mehrfachen Verurteilungen des Betroffenen wegen vielfacher, teilweise auch gewaltsamer Straftaten und der besonderen Schwere von Drogendelikten im allgemeinen ist der Eingriff in seine Rechte verhältnismäßig.

(Leitsätze der Redaktion)

Schlagwörter: Ausweisung, türkische Staatsangehörige, Drogendelikt, Straftat, Integration, deutsches Kind, faktischer Inländer, Achtung des Privatlebens, Achtung des Familienlebens, Schutz von Ehe und Familie, Sozialleistungen, Retraumatisierung, Verhältnismäßigkeit,
Normen: EMRK Art. 8, EMRK Art. 8 Abs. 1,


B. The Court’s assessment [...]

43 [...] The Court takes the view that the applicant has sufficiently demonstrated that he enjoyed a relationship with his daughter which constituted family life within the meaning of Article 8 § 1 of the Convention (compare Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 140, 24 January 2017), having submitted, in particular, that he had had regular contact with her over previous years, even though he was detained in prison for a long period during those years. [...]

46. The Court observes that the applicant was, between 1996 and 2010, repeatedly convicted of a large number of serious criminal offences, in particular in connection with the trafficking of drugs, some of which involved violence (see paragraphs 9-13 above). The prison sentences bear testimony to the seriousness of the offences. The Court has held on previous occasions that it understands – in view of the devastating effects drugs have on people’s lives – why the authorities show great firmness to those who actively contribute to the spread of this scourge (see, among others, Salem v. Denmark, no. 77036/11, § 66, 1 December 2016; Savasci v. Germany, no. 45971/08, § 27, 19 March 2013). The applicant committed at least a substantial part of his offences as a criminally responsible adult. This, as well as the nature and the gravity of the offences, rules out their assessment as mere examples of juvenile delinquency (Kaya v. Germany, no. 31753/02, § 62, 28 June 2007). Finally, it has to be taken into account that the applicant continued to commit criminal offences even though his expulsion had already been ordered for the first time in 2002 and the relevant decision had only been quashed by the Court of Appeal on 14 January 2005 (compare Trabelsi v. Germany, no. 41548/06, § 58, 13 October 2011). Against this background, the domestic authorities’ conclusion that the applicant’s criminal offences were particularly serious cannot be put into question.

47. As regards the length of the applicant’s stay in Germany, the Court observes that he was born there in 1980 and has lived there all his life. His stay in Germany has thus been of considerable length.

48. As regards the applicant’s conduct, the Court notes that he committed the last offence in 2009 and was released from prison in late 2014. While he has not reoffended since, it has to be noted that he spent a considerable part of that time in prison. The domestic authorities considered that he had been granted several chances to adapt his conduct before and failed to make use of them, even when positive developments such as a relationship and the birth of his daughter could have triggered a turnaround, and that there had been a pattern in his life of criminal offences, sanctions, rehabilitation and rather short periods of improved conduct prior to the commission of further criminal offences. They concluded that his conduct since 2009, which included his completion of secondary education and the tackling of his psychological problems and his polysubstance dependence, did not allow for the conclusion that there was no longer a risk of his reoffending. The Court does not consider this finding unreasonable.

49. With regard to the applicant’s family situation and the child’s interests, it has to be noted that the applicant is not living with his daughter nor with the child’s mother, both of German nationality, and that he only did so for a brief period of about two months between the daughter’s birth in September 2009 and his arrest in November 2009. Their relationship was limited during the applicant’s imprisonment and therapy. The domestic authorities considered that the daughter lived with her mother, who had exercised sole custody rights since the child’s birth, and concluded that the mother is the central figure in the child’s life. While the applicant is involved in her upbringing, and his deportation from Germany would certainly have an impact on his daughter, there is no reason why the applicant and his daughter cannot continue their relationship via different means of communication, and the applicant has not shown that it would be impossible for his daughter to visit him, at least together with her mother, in Turkey. Neither has he substantiated that the child’s interests were otherwise adversely affected by his expulsion. Moreover, the re-entry ban is limited to five years and he may apply to be allowed entry for compelling reasons and for short periods of time (see paragraph 31 above).

50. With regard to the solidity of his social, cultural and family ties with the host country, the domestic courts took account of the fact that the applicant was born in Germany and has lived there all his life. In this respect, the Court does not doubt that the applicant has strong ties to Germany (Kaya, cited above, § 64). The domestic authorities also emphasised, however, that the applicant lacked a more sustainable integration in his host country, in particular with regard to a lack of vocational training, the fact that he has never worked and has essentially lived on social benefits, and likely has little prospect of finding a job in the future. In this connection, the Court reiterates that not even a right to naturalisation as such hinders an expulsion (ibid.).

51. With regard to the solidity of social, cultural and family ties with Turkey, the domestic courts concluded that the applicant had a good command of the language and that he was familiar with Turkish living conditions, as he had been brought up in a rather traditional Turkish environment by his grand-parents. The Court, albeit concurring with this assessment, takes note of the fact that the applicant has visited Turkey only twice, as a child. With regard to the alleged damage to his health which might be caused by returning to his home country, which also has to be taken into account when weighing the applicant’s private life (compare Bensaid v. the United Kingdom, no. 44599/98, § 48, ECHR 2001-I), the Court acknowledges that the applicant suffers from trauma and that he prefers ongoing treatment in a familiar environment. However, he has failed to substantiate why he could not continue treatment in Turkey or why the expulsion would significantly increase the risk of further trauma.

52. In the light of the above, the Court recognises that the domestic courts carefully balanced the competing interests and explicitly took into account the criteria set out in the Court’s case-law. Moreover, having regard to the gravity of the drug-related criminal offences committed by the applicant, and considering the sovereignty of member States to control and regulate the residence of aliens on their territory, the Court finds that the interference was supported by relevant and sufficient reasons, and was proportionate in that a fair balance was struck between 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 hand. In these circumstances the Court concludes that the interference with the applicant’s right to private and family life as protected under Article 8 § 1 of the Convention was justified under Article 8 § 2 of the Convention.

53. There has accordingly been no violation of Article 8 of the Convention. [...]