COMERT v. DENMARK
Inadmissible
Snejana Botoucharova
The applicant, Mr Hamit Cömert, is a Turkish national who was born in 1967 and lives in Konya. He is represented before the Court by Mr Haci Ali Özhan, a lawyer practising in Ankara. The Government are represented by their Agent, Mr Peter Taksøe-Jensen, of the Ministry of Foreign Affairs, and their Co-agent, Mrs Nina Holst-Christensen, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a Turkish national, born in 1967. He entered Denmark in 1980, when he was thirteen years old. Four years later, in Turkey he married a Turkish woman who remained in their country of origin. There, the spouses had a daughter in 1987 and a son in 1989. In 1992, the applicant’s wife and his two children entered Denmark under the rules regarding family unification. In 1994 the spouses had another daughter. On 19 April 2002 the applicant was detained on remand, charged with sexual offences allegedly having been committed throughout the past four years against his eldest daughter as from the time when she was eleven years old. An indictment of 6 June 2002 was submitted to the Copenhagen City Court (Københavns Byret), before which the applicant, the daughter and three witnesses were heard, including a teacher in whom the daughter had confided, and a police officer who worked at the institution where the daughter had been placed. The applicant pleaded not guilty and explained among other things that he had commenced sleeping on a mattress in his daughter’s bedroom some years ago, approximately every 14 days, usually in connection with him having come home from a late night out. He did not wish to wake up his wife and his youngest daughter, who slept in the spouses’ bedroom. Also, he was suffering from backache, and it did him good to sleep on a flat surface. In response to the fact that a forensic examination of the sheets in his daughter’s bedroom revealed sperm cells, the applicant explained that he had slept with his wife in the daughter’s bedroom. Before the Court the daughter explained among other things that the applicant had started sleeping with her when she was eleven years old in connection with her mother having gone to Turkey for a funeral. The applicant’s wife was called to the witness stand but declined to give testimony against her husband. She was therefore exempted in accordance with the Administration of Justice Act (Retsplejeloven). By judgment of 11 July 2002, pursuant to sections 232; 210, subsection 3 taken together with subsection 1; and 222, subsection 2 taken together with subsection 1; section 224; and partly section 21 of the Penal Code (Straffeloven) the applicant was convicted of having sexually abused his daughter by resorting to violence and threats during the period from the beginning of 1998 until April 2002 The Court found it established that the sexual abuse involved masturbation, oral sex, and attempts of intercourse, the latter having failed only because the daughter had expressed pain and because it had been physically impossible for the applicant. The applicant was also convicted pursuant to section 266 of the Penal Code for having uttered threats against his daughter’s life in that, after the sexual abuse had been reported to the police, he sent her a Short Message Service (SMS) in which he wrote: “you are superfluous in Denmark, if I see you on the street, I will kill you. This I promise”. Also, it was found established that he had sent her an SMS in which he threatened to come and “fuck her” if she did not call him within 10 minutes. The applicant was sentenced to 3 years’ imprisonment. Furthermore, pursuant to section 22 (ii) and (vi) of the Aliens Act (Udlændingeloven) he was expelled from Denmark forever. As to the latter the court noted on the one hand that the applicant had entered Denmark when he was 13 years old, that he had lived there for 21 years, and that his father and three siblings also lived in Denmark. On the other hand the court noted the seriousness and the nature of the crime, that the applicant’s mother and five siblings lived in Turkey, that the applicant had maintained strong contact with them and that almost every year he had spent his vacation in Turkey. On 31 October 2002, on appeal, the judgment was upheld by the High Court of Eastern Denmark (Østre Landsret), before which the applicant’s wife agreed to testify. She confirmed that in March 1998 she had been in Turkey for sixteen days to participate in a funeral, and stated among other things that she had initiated a divorce from the applicant. Leave to appeal against the judgment to the Supreme Court (Højesteret) was refused by the Leave to Appeal Board (Procesbevillingsnævnet) on 10 January 2003. By judgment of 3 February 2003 the Copenhagen City Court granted the applicant’s wife a divorce and awarded her custody over the three children. The applicant did not request access to any of his children. On 28 January 2004 the applicant was released from prison and expelled to Turkey. The applicant’s father and brother who lived in Denmark also returned to Turkey, and the applicant’s family in Turkey thus consisted of his parents and five siblings. In the summer of 2004 the applicant’s wife went to Turkey to obtain a divorce from the applicant also according to Turkish law. It appears that the applicant objected thereto and that the proceedings thereon are still pending. During that summer the applicant’s two youngest children visited him and his family in Turkey. During the summer of 2005 the applicant’s son stayed with him in Turkey. The Aliens Act provided in so far as relevant: Section 22 “An alien who has lawfully lived in Denmark for more than the last seven years, and an alien issued with a residence permit under sections 7or 8 may be expelled if: ... (ii) the alien, for several criminal counts, is sentenced to minimum 2 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 provisions in Parts XII and XIII of the Penal Code or pursuant to section 119(1) and (2), 180, 181, 183(1) and (2), 183 a, 186(1), 187(1), 192 a, section 210(1) and (3), cf. subsection (1), section 216, 222, sections 224 and 225, cf. sections 216 and 222, section 237, 245, 245 a, 246, 252(2), 261(2), section 276, cf. section 286, sections 278 to 283, cf. section 286, section 288 or 290(2) 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. Section 26: 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 livening 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; (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(iv) to (vi) unless the circumstances mentioned in subsection 1 above constitute a decisive argument against doing so.”