Zitieren als:
EGMR, Urteil vom 27.10.2005 - 32231/02 - M8137
Schlagwörter: Ausweisung, Schutz von Ehe und Familie, Europäische Menschenrechtskonvention, EMRK, Straftäter, Abwägung, Sperrwirkung, Befristung
Normen: EMRK Art. 8; AuslG § 47 Abs. 2; AuslG § 8 Abs. 2

53. The Court notes that it was common ground between the parties that the expulsion order against the applicant constituted an interference with his right to respect for his family life, as guaranteed by Article 8 § 1 of the Convention. The Court endorses this assessment. The Court further finds that the interference was in accordance with the law and pursued legitimate aims, namely public safety and the prevention of disorder or crime, within the meaning of Article 8 § 2 of the Convention.

54. It remains to be determined whether the interference was "necessary in a democratic society", that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. The Court reiterates that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under § 1 of Article 8, be 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 Dalia v. France, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 91, § 52; Mehemi v. France, judgment of 26 September 1997, Reports 1997-VI, p. 1971, § 34; and Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001-IX).

55. Therefore, the Court’s task consists in ascertaining whether the expulsion order in the circumstances of the present case struck a fair balance between the relevant interests, namely the applicant’s right to respect for his family life, on the one hand, and the interests of public safety and the prevention of disorder and crime, on the other.

56. 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).

57. Where an exclusion order is imposed on second generation immigrants who have started a family of their own in that country, the Court applies the following guiding principles in its examination of the question whether that order was necessary in a democratic society (see Boultif, cited above, and Benhebba v. France, no. 53441/99, § 33, 10 July 2003): 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 in the marriage, and if so, their age; and the seriousness of the difficulties which the spouse is likely to encounter in the applicant’s country of origin.

58. In addition, the Court will also take into account the particular ties which these immigrants have developed with the host country where they will have spent most of their life (see Mehemi v. France, judgment of 26 September 1997, Reports 1997-VI, § 36; Radovanovic, cited above, § 33; Üner, cited above, § 40).

59. The Court will first consider the nature and seriousness of the offences committed by the applicant in the present case. It observes in this context that the applicant, during the decade preceding the issue of the expulsion order, had been convicted eight times of criminal offences, four of which relating to traffic offences. While accepting the danger of such offences for public road traffic, the Court attaches importance to the fact that the applicant’s only prison sentences amounted to no more than five and six months, respectively. The Court also appreciates that the domestic authorities show great firmness against aliens who have committed certain types of offences, for instance actively contributing to the spreading of drugs (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; Amrollahi v. Denmark, no. 56811/00, § 37, 11 July 2002). The offences committed by the applicant do not, however, fall within any such category.

60. It has however to be noted that the applicant has not sufficiently established that he had solved the problems which led to these offences. The medical attestation of 19 July 1999 does not indicate whether the applicant had successfully completed the therapy he had started in June 1999.

61. With regard to the applicant’s personal and family situation, the Court notes that the applicant, at the time of the expulsion order of 22 January 1999, had been lawfully residing in Germany for 27 years, having moved to that country at the age of ten in order to live there with his parents and brother and where he received his secondary school education. While the parties do not agree on the extent of the applicant’s professional work, he had been employed for a certain period of that time. Since 1988 he had been in possession of a permanent residence permit. While it is true that the applicant and his wife had been separated during the first five years of their marriage as the applicant’s wife and their first son did not follow the applicant to Germany until 1989, the family had been living together in Germany for ten years and there is no indication that their marriage and family life was anything less than effective.

62. On the other hand, the Court is not persuaded that the applicant has become so estranged from the country where he spent the first ten years of his life hat he would no longer be able to settle in Turkey, having regard to the fact that the applicant married his Turkish wife in Turkey, where their first son was born and that his wife and son did not follow him to Germany until 1989. It follows that the applicant must have entertained certain links to his country of origin at least until 1989. It can further be presumed that the applicant is familiar with the Turkish language, as he married a Turkish wife.

63. With regard to the question of whether the applicant’s family could reasonably be expected to follow the applicant to Turkey, the Court notes that the applicant’s wife and four children are Turkish nationals. As the applicant’s wife entered German territory as an adult and ten years before the issue of the expulsion order, it can be assumed that she has sufficient links which would allow her to re-integrate into Turkish society.

64. The Court notes, however, that the applicant’s four sons - who were, at the time the expulsion order had been issued, between six and thirteen years of age - had been born in Germany respectively entered Germany at a very young age where they received all their school education. Even if the children should have knowledge of the Turkish language, they would necessarily have to face major difficulties with regard to the different language of instruction and the different curriculum in Turkish schools.

65. The Court finally notes that the expulsion order has been issued without setting a time-limit to the applicant’s exclusion from the German territory. As pointed out by the Government, the domestic authorities, pursuant to section 8 § 2 of the Alien’s Act, will generally set a time-limit to the exclusion from German territory upon the alien’s request (see also Yilmaz, cited above, § 47). However, while the applicant has filed such requests in 2002 and 2003, no decision has yet been given, the reasons for which being in dispute between the parties.

66. 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.