KILIC v. DENMARK
Inadmissible
Snejana Botoucharova
The applicant, Mr Hizir Kilic, is a Turkish national who lives in Hellerup. He is represented before the Court by Mrs Jane Ranum, a lawyer practising in Copenhagen. The applicant was born on 20 August 1985 in Denmark where he spent his childhood and youth. He speaks Turkish and Danish. The applicant’s parents, three siblings, his paternal grandmother and two uncles also all live in Denmark. Every second year, the applicant has been on holiday for a longer period in Turkey, where his mother’s family and two paternal aunts live. The applicant’s family in Denmark owns a house in Turkey with several apartments, which are used by the family upon their visits. It appears that as a child, he went for four years to a private school which was attended mainly by pupils with a Turkish background. The applicant left school after nine years’ schooling. He does not have any training or higher education and has not had any significant affiliation to the labour market. By a City Court judgment of 5 December 2000 the applicant was convicted of assault, committed jointly with another perpetrator, and was sentenced to thirty days’ imprisonment suspended on probation. By a City Court judgment of 29 April 2002 the applicant was convicted, inter alia, of assault, committed jointly with another perpetrator, and was sentenced to thirty days’ imprisonment. By a City Court judgment of 10 June 2002 the applicant was convicted of robbery and, inter alia, assault, committed jointly with several other perpetrators. He was sentenced to six months’ imprisonment, of which three months were suspended. On 14 August 2003 the applicant and his cousin were arrested and charged, inter alia, with attempted robbery, aggravated assault and manslaughter. They were detained on remand the following day. On 9 November 2004 they were convicted by the High Court of Eastern Denmark (Østre Landsret) sitting with a jury. It found it established that on 9 August 2003, when the applicant was seventeen years old and his cousin sixteen, they had jointly threatened a young man, an Italian tourist, with a knife in order to steal his money. Although the young man was stabbed by the applicant, he first managed to flee. Shortly thereafter the applicant and his cousin ran him down, beat him, and the applicant stabbed him several times, the injuries inflicted resulting in the victim’s death. In the same judgment of the High Court of Eastern Denmark, the applicant was also convicted of attempted burglary and violation of the Act on Arms committed on 13 February 2003; and of aggravated assault, robbery and attempted extortion committed on 6 September 2004, when the applicant was eighteen years old and detained on remand. The court found it established, inter alia, that the applicant jointly with an inmate had threatened a third inmate with a screw-driver in order to steal his watch and make him provide them with an amount equal to EUR 60,000 from outside the prison. Moreover, they had beaten and kicked him, inter alia, on the head with a stranglehold on him, resulting in the victim losing consciousness several times and being severely injured. According to a psychiatric report of 6 January 2004, the applicant was not mentally ill but he did have character flaws such as limited empathy. Since puberty he had abused hashish. In its judgment, the High Court of Eastern Denmark sentenced the applicant to ten years’ imprisonment. In addition he was expelled from Denmark for an indefinite time to be implemented after the sentence had been served. The applicant’s cousin, who was also convicted of additional offences to attempted robbery, aggravated assault and manslaughter, was sentenced to eight years’ imprisonment and expulsion from Denmark for an indefinite time. Upon appeal, the Supreme Court (Højesteret) confirmed the sentences on 15 March 2005. With regard to the order to expel the applicant and his cousin, the majority of six judges held as follows: [The applicant] was born in Denmark, whereas [his cousin] arrived as a threeyearold. They have spent their youth and had their schooling in this country where also their parents and siblings live. Thus, they have a strong connection with the Danish society and to people living here. At the same time, however, they have a [significant] connection with Turkey and Turkish culture. They speak Turkish and approximately every second year they have visited Turkey where they have a big family. Both have been previously convicted, and have now been sentenced to longer prison terms, inter alia, for manslaughter, attempted robbery and aggravated assault. Having taken all considerations into account, in our view neither the elements mentioned in section 26, subsection 1 of the Aliens Act (Udlændingeloven) nor Article 8 of the Convention speak decisively against [their] expulsion. Accordingly, we vote [for their expulsion]. The minority of one judge held as follows: In my view, when taking all the elements mentioned in section 26, subsection 1 of the Aliens Act into account, the connection which the applicant and [his cousin] have with Turkey and Turkish culture, is not of such an extent and character that it has decisive weight when compared to their strong connection to the Danish society and people living here. In my opinion, the latter speaks significantly against expelling the applicant [and his cousin] from Denmark. Accordingly, notwithstanding the serious crimes committed, I vote [against their expulsion]. The relevant provision of the Aliens Act (Udlændingeloven) applicable at the time read as follows: “An alien who has lawfully stayed in Denmark for more than the last seven years, and an alien issued with a residence permit under sections 7or 8 may be expelled only if: (i) the alien is sentenced to minimum 4 years imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this duration. ... (vi) the alien is sentenced, pursuant to ... Articles ...[manslaughter, aggravated assault , robbery, etc] of the Penal Code to imprisonment or other criminal sanction involving or allowing deprivation of liberty in respect of an offence that would have resulted in a punishment of this nature.” 1. In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of: (i) the alien’s ties with the Danish community, including whether the alien came to Denmark in his childhood or tender years; (ii) the duration of the alien’s stay in Denmark; (iii) the alien’s age, health, and other personal circumstances; (iv) the alien’s ties with persons living in Denmark; (v) the consequences of the expulsion for the alien’s close relatives living in Denmark; (vi) the alien’s slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; and (vii) the risk that, in cases other that those mentioned in section 7(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence. 2. An alien may be expelled pursuant to section 22, subsection 1, (iv) to (vi) unless the circumstances mentioned in subsection 1 above constitute a decisive argument against doing so.