FIFTH SECTION
DECISION
Application no. 45971/08
Ahmet SAVASCI
against Germany
The European Court of Human Rights (Fifth Section), sitting on
19 March 2013 as a Committee composed of:
Boštjan M. Zupančič, President,
Angelika Nußberger,
Helena Jäderblom, judges,
and Stephen Phillips, Deputy Secion Registrar,
Having regard to the above application lodged on 23 September 2008,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ahmet Savasci, is a Turkish national, who lives in
Adana. He was represented before the Court by Mr Karl Lehner, a lawyer
practising in Nürnberg.
The facts of the case, as submitted by the applicant, may be summarised
as follows.
1. Personal circumstances
2. The applicant was born in 1957 and moved to Germany in 1978 at the
age of 21.
3. He married a German citizen in 1981. Subsequently, he received a
provisional residence permit (Aufenthaltserlaubnis), which was extended on
2
SAVASCI v. GERMANY DECISION
several occasions. In 1989 the authorities granted him an unlimited
residence permit.
4. The applicant and his wife have 2 children, who were born in 1983
and 1989. The children have German nationality and grew up in Germany.
5. The applicant needs permanent medical treatment. He suffers from
diabetes mellitus and glaucoma.
2. Criminal proceedings
6. On 3 September 1995 the applicant was arrested on suspicion of
having
committed
an
offence
under
the
Narcotic
Act
(Betäubungsmittelgesetz). On 7 August 1997 the Bayreuth Regional Court
convicted him of drug smuggling and trafficking within a criminal
organisation (bandenmäßige Einfuhr von Betäubungsmittel; bandenmäßiger
Handel mit Betäubungsmitteln) and sentenced him to 9 years and 6 months
of imprisonment. According to the findings of the court the applicant was
responsible for the smuggling of approximately 72 kilograms of heroin to
Germany which he intended to resell. The court noted that the police had
secured the heroin which did not find its way into a distribution system. The
court found that the applicant was a member of the criminal organisation
“Adena group”. It considered in favour of the applicant that he had no
criminal record before, that his family had debts amounting to
300,000 Deutschmarks (153,388 EURO), that he had been encouraged by
an undercover agent of the police and that he had confessed to the offence
and assisted the courts by unveiling other offenders. The court found on the
other hand after taking evidence that the applicant had already participated
in the trafficking of 18 kilograms of hashish in 1992, that he had earned his
living partly by illegal activities such as smuggling diamond drills
(Schmuggel von Diamantbohrern) and that he had committed the offence
with considerable criminal energy.
7. On 7 August 1997 the Bayreuth Regional Court convicted the
applicant’s wife of aiding and abetting (Beihilfe) to 2 years of imprisonment
on probation. Pursuant to the findings of the court the applicant’s wife had
not taken an active part in the offence, but had forwarded messages.
8. On 14 February 2002 the Bayreuth Regional Court released the
applicant on probation after 6 years and 6 months of imprisonment. The
court heard the applicant, took expert opinion and found that there were
sufficient indications for a positive development of the applicant in the
future. The court underlined that the applicant had given up his criminal
intentions.
9. After his release the applicant did not commit any offences. Together
with his spouse he built up a family enterprise.
SAVASCI v. GERMANY DECISION
3
3. Expulsion proceedings
10. On 17 March 1999 the Bayreuth District Authority (Landratsamt
Bayreuth) informed the applicant of its intention to expel him and invited
him to make representations. The applicant submitted in particular that his
family was fully integrated in Germany and that an expulsion would be
disproportional.
11. On 3 December 1999 the Bayreuth District Authority ordered the
applicant’s expulsion to Turkey. The applicant’s administrative appeal
(Widerspruch) was of no avail.
12. On 11 June 2001 the Bayreuth Administrative Court dismissed his
appeal.
13. On 21 October 2002 the Bavarian Administrative Court of Appeal
dismissed his appeal. It held that the expulsion order had a legal basis in
sections 47 § 1 and 48 § 1 of the Aliens Act (Ausländergesetz). It referred to
the Court’s case-law and found that the expulsion order did not violate
Article 8 of the Convention. In this context it underlined that the amount of
heroin had been sufficient for several million injections and stated that the
applicant had strong ties to Turkey and was able to speak Turkish. It
considered on the one hand that the applicant had lived in Germany since
1978, that he was married with a German citizen and that he had 2 children
in Germany. It found on the other hand that his wife had also been involved
in the drug smuggling and had been sentenced by the courts to 2 years of
imprisonment on probation. It further found that the applicant was unable to
recognise the severity of the offence. This could be concluded from a letter
of the applicant to the court in which he blamed other persons for the
offence and from an expert opinion pursuant to which the applicant had an
ambivalent attidude to the offence. The court found that the applicant was at
risk of committing further offences. The court stated that his wife and his
children could maintain contact with the applicant by writing, by phone and
by visiting him in Turkey. It further underlined that the applicant had the
opportunity to file a request to set a time-limit on the effects of his
expulsion (zeitliche Befristung) pursuant to section 8 of the Alien Act. It
balanced the arguments and came to the conclusion that also when
considering the applicant’s family situation, the expulsion was not
disproportional.
14. On 15 March 2005 the Federal Administrative Court quashed the
decision, because issues of the law of the European Union had to be
clarified. It underlined that the applicant’s expulsion was not contrary to
Article 8 of the Convention.
15. On 17 August 2006 the Bavarian Court of Appeal dismissed the
applicant’s appeal again. Referring to the reasons in its judgment of 2002 it
confirmed that the applicant’s expulsion was in conformity with domestic
law and Article 8 of the Convention.
4
SAVASCI v. GERMANY DECISION
16. On 29 June 2007 the Federal Administrative Court dismissed the
further appeal on points of law. At the time of this decision both children of
the applicant were adults.
17. On 15 April 2008 the Federal Constitutional Court refused to admit
the applicant’s constitutional complaint without further reasons
(2 BvR 1728/07).
18. On 29 May 2008 he was expelled to Turkey.
COMPLAINT
19. The applicant complained under Article 8 of the Convention that his
deportation to Turkey in 2008 would destroy his relationship with his
children and his wife.
THE LAW
20. The applicant complained that, as a result of his expulsion, he was
unable to exercise his right to family life with his wife and their children.
He relied on 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 ...”
21. The Court reaffirms that a State is entitled, as a matter of
international law and subject to its treaty obligations, to control the entry of
aliens into its territory and their residence there. The Convention does not
guarantee the right of an alien to enter or to reside in a particular country
and, 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, insofar 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, Üner v. the Netherlands [GC], no. 46410/99, § 54,
ECHR 2006-XII).
22. The Court notes that the applicant had established a family life in
Germany with his wife and their children. It also notes that his children,
who grew up in Germany and were adults at the time of the expulsion, could
not be expected to move to Turkey. It accepts that there may be difficulties
SAVASCI v. GERMANY DECISION
5
for his wife to join him in Turkey. The expulsion therefore interfered with
his right to family life.
23. The Court further notes that the expulsion had a basis in domestic
law, namely in sections 47 § 1 and 48 § 1 of the Aliens Act, and that it
served a legitimate aim, namely the prevention of disorder and crime.
24. It has thus to be determined whether the expulsion was “necessary in
a democratic society”, that is to say, if it was justified by a pressing social
need and proportionate to the legitimate aim pursued.
25. The Court reiterates the criteria it uses for such an assessment in
cases where the main obstacle to expulsion is the difficulty for the spouses
to stay together and for a family to live in the country of origin of the person
to be expelled (compare Üner, cited above, §§ 57-58):
“– 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.”
...
“– 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.”
26. In applying these criteria to the present case the Court has regard to
the fact that the applicant had lived 30 years in Germany when the
expulsion order became final (see Maslov v. Austria [GC], no. 1638/03,
§ 61, ECHR 2008). During this considerable length of time the applicant
had married and founded a family. It has to be recognised that the
applicant’s marriage had then lasted 27 years and that the applicant’s
expulsion resulted in separating him from his family. It has to be noted that
his children had reached majority by the time the expulsion order was
executed. Although the applicant’s relationship with his wife and children
was severely limited after his detention, the applicant’s ties with Germany
nevertheless remained strong during this time (compare Joseph Grant v.
6
SAVASCI v. GERMANY DECISION
the United Kingdom, no. 10606/07, § 40, 8 January 2009). The Court also
takes note of the 6 years passed between his release from prison and the
expulsion.
27. On the other hand, the Court observes that the applicant committed a
serious criminal offence – he dealt in a considerable amount of heroin, a
particularly dangerous drug. The imposed sentence of more than 9 years
bears testimony that the committed crime was very severe. The Court has
found on several occasions that the states, in principle, have legitimate
reasons to combat the distribution of drugs firmly (Maslov, cited above,
§ 80; A.W. Khan v. the United Kingdom, no. 47486/06, §§ 40-41,
12 January 2010; C. v. Belgium, 7 August 1996, § 35; Reports of Judgments
and Decisions 1996-III).
28. The Court further notes that the applicant spent more than a third of
his life in Turkey. Neither the language nor the customs were new for the
applicant, who grew up and lived in Turkey until the age of 21
(see Antwi and Others v. Norway, no. 26940/10, § 92, 14 February 2012:
arrival at an adult age; see e contrario Butt v. Norway, no. 47017/09, § 76,
4 December 2012: arrival at the age of 3 and 4). The domestic courts found
that he had strong ties to Turkey and was able to speak Turkish
(see Üner, cited above, §§ 57 – 58). Therefore there were no
insurmountable obstacles that prevented his reintegration in his country of
origin (compare Miah v. United Kingdom, no. 53080/07, § 25, 27 April
2010).
29. The Court further has regard to the fact that the applicant’s spouse
was also involved in the offence and that, as the domestic courts found, the
applicant’s wife and his children could maintain contact with the applicant
by for example visiting him in Turkey.
30. Moreover, the Court notes the fact that the expulsion from German
territory was not permanent and that the applicant has the opportunity to file
a request to set a time-limit on the effects of his expulsion.
31. The Court recognises that the domestic courts reviewed the issues
mentioned above in detail and with due consideration to the applicant’s
family situation. Against the background of the gravity of the drug crime
committed by the applicant, and considering the sovereignty of member
States to control and regulate the residence of aliens on their territory, the
Court accepts that the German courts balanced the applicant’s right to
respect for his family life reasonably against the State’s interest in
preventing disorder and crime.
SAVASCI v. GERMANY DECISION
7
32. Accordingly, the application is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen Phillips
Deputy Registrar
Boštjan M. Zupančič
President