Expulsion of Turkish from Germany following his convictions regarding drugs. Non-integration into German society. It is necessary for society to expel him

JUDGMENT

Cabucak v. Germany  20.12.2018  (no. 18706/16)

see here

SUMMARY

The case concerned the applicant’s expulsion to Turkey by the German authorities following several
criminal convictions. The Court found in particular that Mr Cabucak had sufficiently demonstrated that he enjoyed a
relationship on a regular basis with his daughter which constituted family life within the meaning of
Article 8 § 1. However, he failed to substantiate that his daughter’s interests were adversely affected
by his expulsion or why it would significantly increase the risk of further trauma for him.

Furthermore, having regard to the nature and gravity of the drug-related criminal offences
committed by Mr Cabucak, and the lack of his sustainable integration in Germany, the Court found
that the interference was supported by relevant and sufficient reasons, and was proportionate. It
reiterated that, in view of the devastating effects of drugs on people’s lives, it was not for the Court
to criticise the authorities for their firm response to those who actively contribute to the spread of
this scourge. The Court also took the sovereignty of member States to control and regulate the
residence of aliens on their territory into account. The Court concluded that the domestic courts carefully balanced the competing interests and that the interference with the applicant’s right to private and family life was justified under Article 8 § 2.

PROVISION 

Article 8

PRINCIPAL FACTS

The applicant, Yunus Cabucak, is a Turkish national who was born in 1980 in Neustadt/Weinstraße
and lives in Speyer (Germany). In January 1996 he was issued a permanent residence permit by
Germany. From 1996 to 2010, he was convicted on numerous occasions of various drug offences. He
was notably sentenced in 2010 to four years and three months’ imprisonment. During this period, he
underwent several courses of therapy for his drug addiction.

In July 2002 the competent authority of Neustadt ordered Mr Cabucak’s expulsion to Turkey,
referring to his prior convictions. His application for administrative review was rejected as was his
appeal to the Neustadt Administrative Court. In January 2005, however, the Rhineland-Paletinate
Administrative Court of Appeal reversed the Administrative Court judgment as Mr Cabucak had a
right of residence, had not yet undergone therapy, which he was willing to do, and had extenuating
circumstances, given that his mother had been murdered by his father in 1982.

In 2008 the authorities once again ordered Mr Cabucak’s expulsion to Turkey, which he challenged.
In May 2014 the Administrative Court held that the authorities had correctly established that he
posed a danger, referring to his frequent failure to undergo therapy for his drug addiction, and the
fact that he was likely to commit criminal offences again. Moreover, the court underlined that, even
though he had in the meantime had a daughter with a German national, she had only lived with him
for a few months after her birth and that contact had become infrequent after the mother had had a
second child with a different father. It also considered that Mr Cabucak lacked economic or social
integration.

Mr Cabucak’s appeal was rejected on 25 March 2015. The Federal Constitutional Court did not
accept his constitutional complaint for adjudication.

An attempt to deport the applicant in October 2015 was unsuccessful, because the applicant did not
possess a valid passport. In December 2015 he was granted a temporary permit to stay pending
asylum proceedings. There is no information about the current state of these proceedings.

THE DECISION OF THE COURT 

Article 8

The Court considered that while Mr Cabucak’s expulsion amounted to an interference with his family
life, as he enjoyed a relationship with his daughter, that interference had been necessary in a
democratic society, namely in the interest of public safety and for the prevention of disorder or
crime.

The Court observed in particular that the applicant was convicted of a large number of serious drug
related criminal offences between 1996 and 2010. The nature and the gravity of the offences, as well
as the fact that Mr Cabucak committed at least a substantial part of his offences as a criminally
responsible adult, ruled out their assessment as mere examples of juvenile delinquency. It also had
to be taken into account that he continued to commit criminal offences even though his expulsion
had already been ordered for the first time in 2002.

The applicant’s conduct since 2009, which included his completion of secondary education and the
tackling of his psychological problems, did not warrant the conclusion that there were no longer
risks of his reoffending.

As regards his family situation, the Court noted that he was not living with his daughter, and that he
had only done so for a brief period of about two months between the daughter’s birth in September
2009 and his arrest in November 2009. It also noted that Mr Cabucak had strong ties to Germany,
being born and having lived all his life there, but still lacked sustainable integration, in particular with
regard to the absence of vocational training. The Court concurred with the domestic courts’
assessment that the applicant had solid social, cultural and family ties with Turkey given that he had
a good command of the language and that he was familiar with Turkish living conditions, even
though he had visited Turkey only twice, as a child. Lastly, the Court acknowledged that he suffered
from trauma stemming from the fact that his father murdered his mother, but considered that he
had failed to substantiate his claim that he could not continue treatment in Turkey and that the
expulsion would significantly increase the risk of further trauma.

Therefore, having regard to the gravity of the drug-related criminal offences committed by Mr
Cabucak, and considering the sovereignty of member States to control the residence of aliens on
their territory, the Court their territory, the Court found that the interference was supported by relevant and sufficient reasons.

The Court concluded that there had been no violation of Article 8 concerning Mr Cabucak’s
expulsion(echrcaselaw.com editing). 


ECHRCaseLaw

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