KILIC v. DENMARK
Inadmissible
Snejana Botoucharova
The applicant, Mr Ferhat Kilic, is a Turkish national who lives in Copenhagen. He is represented before the Court by Mr Ulrik Rasmussen, a lawyer practising in Copenhagen. The applicant was born on 2 May 1987 in Turkey. In order to join his father, who had lived in Denmark since 1986, on 22 September 1990 the applicant entered Denmark together with his mother. At the relevant time the applicant was three years old. He spent most of his childhood and youth in Denmark. It appears that twice during the years from 1999 to 2001 he spent eight months in Turkey. He left school after seven years’ schooling and has never had any affiliation to the labour market. His parents, two 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 to their country of origin. He speaks Turkish and Danish. By a City Court judgment of 25 March 2003 the applicant was convicted of two independent assaults. As to the first assault, jointly with another perpetrator, the applicant had overturned a cyclist, beaten and kicked him, including on the head, resulting in the victim being badly injured, i.e., among other things, he broke his knee cap. As to the second assault, the applicant had been caught in the act of burglary by the house owner in question, upon which the applicant beat and kicked the latter, including on the head. The applicant was sentenced to forty days’ imprisonment suspended on probation. The judgment was appealed against to the High Court of Eastern Denmark (Østre Landsret). By a City Court judgment of 6 May 2003 the applicant was again convicted, inter alia, of two independent assaults of respectively a headmaster and a police officer. He was sentenced to spend four months at a detention centre for children and young persons and thereafter twelve months at an institution for youth persons. The applicant appealed against the judgment to the High Court of Eastern Denmark. On 6 August 2003 the High Court confirmed both City Court judgments. It decided, however, to fix a joint sentence, thus maintaining the sentence set out in the City Court’s judgment of 6 May 2003. 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 sitting with a jury. It found it established that on 9 August 2003, when the applicant was sixteen years old and his cousin seventeen, jointly they had 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’s cousin, he first managed to flee. Shortly thereafter the applicant and his cousin ran him down, beat him, and the applicant’s cousin stabbed him several times, the injuries inflicted resulting in the victim’s death. By the same judgment, the applicant was also convicted of: burglary committed on 22 January 2003 with regard to goods equal to an amount of approximately 6,400 euros (EUR); and four counts of escape from detention centres for children and young persons, namely in the periods from 8 July 2003 until 10 July 2003, when he was arrested by the police; from 28 July 2003 until 6 August 2003, when he was again arrested by the police; from 6 August 2003 until 10 August 2003, when he was arrested by the police; and from the afternoon on 13 August 2003 until later on the same day, when he was arrested by the police. According to a psychiatric report of 8 December 2004, the applicant was not found to be mentally sick but he did have character flaws such as abdication of responsibility. Since his childhood he had behavioural problems and since puberty he had abused hashish. In its judgment, the High Court of Eastern Denmark sentenced the applicant to eight 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 ten 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’s cousin] was born in Denmark, whereas [the applicant] 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.