HAMESEVIC v. DENMARK
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Robert Spano;Stéphanie Mourou-Vikström
1. The applicant, Mr Kemal Hamesevic, is a citizen of Bosnia and Herzegovina and was born in 1971. It appears that he currently lives in Bosnia and Herzegovina. He was represented before the Court by Mr Gunnar Homann, a lawyer practising in Copenhagen. 2 3. The applicant entered Denmark in 1994, when he was 23 years old. He was granted asylum the following year. 4. In the meantime, on 15 August 1994 he had married a woman originating from Bosnia and Herzegovina, with whom he has three children, born respectively in 1995, 1996 and 1998. The children are Danish nationals. 5. The spouses divorced in 2007. 6. On 23 February 2007 the applicant was convicted of assault and sentenced to 40 days’ imprisonment, suspended. 7. On 8 August 2012 the applicant and his girlfriend, A, a Danish national originating from Bosnia and Herzegovina, were arrested and charged with smuggling loaded weapons from Bosnia and Herzegovina into Denmark, in the spring and summer of 2012. 8. On 12 March 2013, a City Court (retten i Kolding) convicted the applicant, A, and two co-accused under Article 192 a of the Penal Code of smuggling loaded weapons from Bosnia and Herzegovina to Denmark for the purpose of resale (four AK 47 machine guns and two pistols), and attempt to do so (ten pistols), as well as offences under the Weapons Act (notably possession of ammunition). The applicant was found to be the instigator and was therefore sentenced to two years and six months’ imprisonment. A was sentenced to one year in prison. 9. In addition, the applicant was expelled from Denmark with a life-long ban on returning. Before the City Court the Aliens Board (Udlændingestyrelsen) gave a statement about the applicant’s situation, inter alia, that the applicant’s father lived in Bosnia and Herzegovina and that his mother had died eleven years before. The applicant’s children would not be covered by the applicant’s expulsion. The applicant had worked in Denmark, but for the two previous years he had received social welfare benefits and taken medication against depression. During the two previous years, he had been on vacation in Bosnia and Herzegovina around five times and he was in the process of buying a house in the town of Sanski Most. He did not want to move to Bosnia and Herzegovina, however, since he only had his father there, and his children were in Denmark. The City Court stated: “The applicant has had a legal stay in Denmark for more than nine years [referring to the wording in section 22 of the Aliens Act]. Since he is convicted of violation of Article 192 a of the Penal Code, the legal authority for expulsion is set out in section 22, no. 8 of the Aliens Act. It transpires from section 26, subsection 2, of that Act that an alien shall be expelled under sections 22-24 and section 25, unless such would be in breach of Denmark’s international obligations. Having made an overall assessment of the information contained in the statement by the Aliens Board, including notably the connection to his home country, and the age of the applicant’s children in Denmark combined with the sentence and nature of the crime, the City Court does not find that expulsion would be in breach of Denmark’s international obligations. Accordingly, the claim to expel the applicant is granted by the City Court. By virtue of section 32, subsection 2, no. 5, the expulsion is permanent due to the length of the sentence”. 10. The applicant appealed against the judgment to the High Court of Western Denmark (Vestre Landsret) before which he explained, among other things, that his children, who lived with their mother, had visited him in prison twice a week. Before his imprisonment, he had seen them almost every day. The applicant and A had lived together for a couple of years and had married on 31 May 2013. Moreover, the applicant had acknowledged paternity of a child, E, born to A on 26 September 2007, at a time when she was living with R, the father of A’s other children, Danish citizens born in 1992, 1995, 1999, and 2001. The applicant owned a piece of land in Serbia, but he could not build on it. He had inherited it from his mother. He and A had to give up their plan to buy a house in Bosnia and Herzegovina since, due to his arrest, they could not pay for it. His father was 74 years old. 11. A explained that she and the applicant had been a couple for six years and had long intended to marry. It had been a difficult period when both she and the applicant had been in pre-trial detention and she could not see her daughter, E. The latter now lived with a foster family and visited A every second weekend. If the applicant were to be expelled, she and the children would have nobody to lean on in Denmark. She was from Bosnia and Herzegovina, but no longer had any family there, and she could not see how she and the children would be able to move to Bosnia and Herzegovina with the applicant. 12. By a judgment of 13 August 2013, the High Court increased the applicant’s sentence to three years’ imprisonment and upheld the expulsion order. It adhered to the reasons set out by the City Court and added that the fact that the applicant, after the City Court’s judgment, had married A, and that the paternity case concerning five-year-old E had been reopened, could not lead to a finding that the applicant’s expulsion would be in breach of Denmark’s international obligations. 13. Leave to appeal to the Supreme Court (Højesteret) was refused on 27 December 2013. 14. In the meantime, on 12 July 2013 a City Court had reopened the paternity case concerning E, who until then had had R registered as her father. On 17 October 2013, the same City Court confirmed that the applicant was E’s father. 15. On 6 March 2014, before having served his sentence, the applicant requested that the expulsion order be revoked under section 50, subsection 1, of the Aliens Act due to material changes in his circumstances, notably because it had been established that he was E’s father. 16. The case was submitted to the City Court (retten i Svendborg), before which the applicant explained that A and the children would not follow him as they would not be able to cope in Bosnia and Herzegovina. 17. A explained, among other things, that she lived in an apartment with the three youngest children, including E. At the relevant time the children were 15, 13 and 7 years old. The two eldest had moved away from home. Her children spoke Danish and Bosnian. She did not have a job. If the applicant were to be expelled, she would have to stay in Denmark, because the children could not live by themselves, and she could not envisage taking E to Bosnia, as E would not be able to understand that she would no longer attend school in Denmark. A’s parents lived in the United States of America. She only had the applicant, and her children in Denmark, and she needed a man to support them. Her children with R had contact with him and visited him as they liked. They had stayed with him when she was in pre-trial detention. 18. A statement of 4 September 2014 by the Aliens Board was submitted before the City Court setting out, inter alia, that the applicant was able to speak and write in Danish. He had received frequent visits in prison from his sister, brother-in-law, children and stepchildren. The applicant’s father had died and the applicant no longer had any close family in Bosnia. He had been offered a job as a driver, to begin when he had served his sentence. 19. On 18 November 2014 the City Court refused to revoke the expulsion order, finding that no material changes had occurred in the applicant’s circumstances. 20. On appeal to the High Court, the applicant and A were heard anew. The latter now stated that her children did not speak much Bosnian. She could not follow the applicant to Bosnia. They had nothing in Bosnia. It would be very difficult for them to settle there. 21. On 20 January 2015, having made an overall assessment, which notably took into account on the one hand the applicant’s connection to Denmark and on the other hand, the seriousness of the crime committed and the sentence imposed, the High Court confirmed the decision to refuse to revoke the expulsion order. In the High Court’s view, the expulsion order would not be disproportionate or in violation of Article 8 of the Convention. The High Court gave weight to the fact that both the applicant and A were from Bosnia and Herzegovina, and accordingly spoke Bosnian. Moreover, A had stated that her three youngest children, who lived with her, spoke Danish and Bosnian. Therefore, the High Court found it established that it would be possible for them to continue family life with the applicant in Bosnia. Finally it noted that the applicant’s children with his ex-wife, who were aged 16, 18 and 19, lived with their mother. 22. Leave to appeal to the Supreme Court was refused on 13 April 2015. 23. Finally, the Aliens Board, by a decision of 4 March 2015, upheld on appeal by the Refugee Appeals Board (Flygtningenævnet) on 26 May 2015, found that there were no impediments to deporting the applicant to Bosnia and Herzegovina. 24. The applicant was deported shortly thereafter. 25. The relevant provisions of the Aliens Act (udlændingeloven) relating to expulsion were recently set out in detail in Salem v. Denmark, no. 77036/11, §§ 49-52, 1 December 2016.