SECOND SECTION
CASE OF AVCI v. DENMARK
(Application no. 40240/19)
 
 
JUDGMENT
 
Art 8 • Expulsion • Private life • Expulsion order with a permanent re-entry ban • Existence of very serious reasons for expelling settled migrant, born in Denmark and living there for twenty-five years, following conviction and sentence for serious drug offences • Risk of reoffending • Prior convictions • Establishing life in country of destination possible • Proportionality duly assessed by domestic courts in light of Court’s case-law
 
STRASBOURG
30 November 2021
 
 
FINAL
 
04/04/2022
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Avci v. Denmark,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Carlo Ranzoni, President,
 Jon Fridrik Kjølbro,
 Aleš Pejchal,
 Valeriu Griţco,
 Branko Lubarda,
 Marko Bošnjak,
 Saadet Yüksel, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 40240/19) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Cihan Avci (“the applicant”), on 4 July 2019;
the parties’ observations;
Having deliberated in private on 19 October 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the order for the expulsion of a settled migrant, issued in criminal proceedings. THE FACTS
2. The applicant was born in Denmark in 1993. He lives in Turkey. He was represented before the Court by Ms Mette Grith Stage, a lawyer practising in Fredericia. 3. The Danish Government (“the Government”) were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their Co-Agent, Ms Nina Holst‑Christensen, from the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. By a District Court judgment of 7 October 2013, the applicant was convicted of one count for having tried to free a detainee in August 2012, and another count for having, in February 2013, as a participant in a crowd, caused a sense of insecurity for the public. He was sentenced to 20 days’ imprisonment, suspended. 6. By a District Court (Retten i Glostrup) judgment of 12 September 2018 he was convicted of serious drug offences under section 191(2) read with section 191(1) of the Penal Code, committed in the period from January to April 2017, together with several other persons. Being part of an organised network, he had received, possessed, and transferred a total of one kilogram of cocaine by making extensive sales and deliveries to identified and unidentified buyers. The applicant was sentenced to four years’ imprisonment and given a warning about expulsion. 7. For the purposes of the criminal proceedings, the Immigration Service (Udlændingestyrelsen) gathered information about the applicant’s personal circumstances, which included the following. The applicant was born in Denmark and lived with his parents and three siblings. He was unmarried and had no children. He had not completed the ninth grade or any subsequent education. After lower secondary school, he had worked in different jobs, for instance in a supermarket and as a waiter. He was in receipt of unemployment benefits when he was arrested. His maternal aunt and grandfather lived in Turkey. He spoke Turkish/Kurdish, but not as well as he spoke Danish. He had been on holiday in Turkey several times. 8. On appeal, before the High Court (Østre Landsret) the applicant explained, among other things, that his father’s sister in Turkey had died, and that he had no maternal aunt in the country. His maternal grandfather in Turkey suffered from dementia, and he had no relationship with him. He spoke a little Kurdish, in particular with his father, but he mostly spoke Danish with his parents. He did not speak Turkish but for a few words. It was not correct, as stated in the above information about his personal circumstances, that he spoke both Kurdish and Turkish. He had only been to Turkey as a tourist on holidays. He had committed the offences due to a gambling debt. 9. In a judgment of 17 January 2019, the High Court, sitting with six judges, unanimously confirmed the conviction of the applicant and his sentence, but overturned the District Court’s decision regarding expulsion. Thus, the High Court ordered the applicant’s expulsion with a permanent ban on his re-entry, for the following reasons:
 “... [the applicant] has been found guilty of serious drug offences under section 191(2), read with section 191(1), of the Penal Code committed in the period from January to April 2017 together with several other persons and as part of an organised network by having received, possessed and transferred a total of 1 kilogram of cocaine by way of extensive selling and delivery to identified and unidentified buyers. Prior to committing the offences at issue, [the applicant] had, of relevance to the present case, previously been sentenced by judgment of 7 October 2013 to imprisonment for a term of 20 days for violation of section 124(2), read with section 21, of the Penal Code for having tried in August 2012 together with a large group of people to free a detainee by making a forward run towards the detainee and a police officer. Further, by that same judgment, he was sentenced for violation of the Executive Order on Police Measures to Maintain Law and Order (ordensbekendtgørelsen) by, as a participant in a crowd, having caused a sense of insecurity to the public in February 2013. The offences for which [the applicant] has been sentenced were committed after he turned 18. Considering in particular the great seriousness of the offences at issue, which were in the nature of organised drug dealing committed together with others and over several months, the High Court finds that [the applicant’s] personal behaviour represents a genuine and sufficiently serious threat affecting the fundamental interests of society. Further, considering in particular the nature and extent of the offences committed, including serious drug offences committed over a period of three months, the High Court finds that there is a risk that [the applicant] will continue to commit offences in Denmark in the future if not expelled. In that connection, [the applicant’s] statement that he committed the offence due to his gambling debt cannot be taken into account. As mentioned above, [the applicant] was born and raised in Denmark where his mother, father and siblings live. He has completed no training or education in Denmark except for passing his ninth’ grade final exams while remanded in custody pending the present proceedings. He has been on the labour market on a regular basis, and there is no doubt that expulsion from Denmark combined with a permanent re-entry ban would be a particular burden on him due to his ties with Denmark.
[The applicant] has been to Turkey on holiday several times during his childhood and youth. His maternal grandfather lives in Turkey, and he has stated that he speaks Kurdish, especially with his father. Against that background, he must be deemed to have certain ties with Turkey, including knowledge of the customs and culture of the country, despite his statement that he does not speak Turkish and the circumstance that his family belongs to the Kurdish part of the Turkish population. Accordingly, the High Court finds as a fact that [the applicant’s] personal and cultural ties with Denmark are stronger than his ties with Turkey, but that he has the prerequisites for establishing a life in Turkey if expelled. Further, it is observed that the members of [the applicant’s] family living in Denmark will be able to maintain contact with him by communicating with him on the phone, over the Internet etc. Although [the applicant] was born and raised in Denmark, where his parents and siblings live, and although he has not previously been issued with a suspended expulsion order, the High Court finds, based on an overall assessment of the above, that the circumstances in favour of expelling [the applicant] are sufficiently compelling to carry greater weight than the circumstances that make expulsion inappropriate. Expulsion with a permanent re-entry ban would therefore not for certain be a disproportionate sanction contrary to Article 14(1) of the Association Agreement or Article 8 of the European Convention on Human Rights
Accordingly, the High Court changes the judgment of the District Court as regards [the applicant], expelling him with a permanent re-entry ban, see section 22(1)(i) and (iv), read with section 32(2)(v), of the Aliens Act then in force.”
10. The applicant’s request for permission to appeal against the expulsion order to the Supreme Court (Højesteret) was refused by the Appeals Permission Board (Procesbevillingsnævnet) on 8 March 2019. 11. The deportation order was enforced on 24 January 2020. Relevant Legal framework
12. The relevant provisions of the Aliens Act (Udlændingeloven) relating to expulsion have been set out in detail, for example, in Munir Johana v. Denmark (no. 56803/18, §§ 22-26, 12 January 2021) and Salem v. Denmark, (no. 77036/11, §§ 49-52, 1 December 2016). 13. At the time of the crime committed in the present case, section 32 of the Aliens Act set out the length of the re-entry ban to be imposed, which automatically followed the length of the imposed sentence. The re-entry ban was to be imposed permanently, if the alien was sentenced to imprisonment for more than two years. 14. Section 32 was amended by Act no. 469 of 14 May 2018, which came into force on 16 May 2018. Briefly explained, the amendment entailed that the re-entry ban was to be imposed permanently, if the alien was sentenced to imprisonment for more than one year and six months (section 32(4)(vii)), but it gave the courts discretion to reduce the length of re‑entry bans, whether limited in time or permanent, if the length would otherwise certainly be in breach of Denmark’s international obligations, including Article 8 of the Convention. The Act applied to crimes committed after its entry into force (and thus not to the present case). THE LAW
15. The applicant complained that the High Court’s decision of 17 January 2019 to expel him from Denmark, which became final on 8 March 2019, was in breach of Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Admissibility
16. The Government submitted that the application should be declared inadmissible for non-exhaustion of national remedies, since the applicant had not brought the matter of revocation of the expulsion order before the courts, by virtue of section 50 of the Aliens Act. 17. The Government also found that the complaint should be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. 18. The applicant disagreed. 19. The Court reiterates that the purpose of the rule on exhaustion of domestic remedies is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). 20. In the Danish context, in order to bring a complaint under Article 8 of the Convention about an expulsion order before the Court, an applicant must have exhausted domestic remedies by relying on the said Article either in the criminal proceedings against him, or, after having served his sentence, in revocation proceedings under section 50 of the Aliens Act. It is recalled that section 50 provides for a possibility to revoke the expulsion order if, subsequently, material changes in the expelled person’s circumstances have occurred (see, for example, Salem v. Denmark, cited above, § 56). A request under section 50 of the Aliens Act may be submitted not earlier than 6 months and must be submitted not later than 2 months before the date when enforcement of the expulsion can be expected. The Court has accepted that this remedy is also adequate and effective (see Amrollahi v. Denmark (dec.), no. 56811/00, 28 June 2001). 21. In the present case the applicant chose to bring his complaint before the Court after he had exhausted domestic remedies by challenging the expulsion order in the criminal proceedings against him. 22. In the Court’s view it is immaterial that the applicant can also at a later stage challenge the expulsion order under section 50 of the Aliens Act by arguing that material changes in his circumstances have occurred. 23. In these circumstances, the Court is satisfied that the applicant has exhausted domestic remedies in respect of the complaint lodged before the Court. It therefore dismisses the Government’s preliminary objection. 24. Furthermore, in the Court’s view, the complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsSubmissions by the parties

25. The applicant submitted that the Danish courts had failed to take the relevant circumstances into account in the balancing test, notably that he did not have a significant criminal past, that he had never been issued with a conditional expulsion order, and that he had strong ties to Denmark and few ties to Turkey. In his view, it had not been established that there were “very compelling reasons” to expel him. 26. The Government submitted that the expulsion order had been “in accordance with the law”, had pursued the legitimate aim of preventing disorder and crime and had been “necessary in a democratic society”. The Danish courts had struck a fair balance between the opposing interests and had carefully assessed the applicant’s personal circumstances and considered the case specifically in the light of Article 8 of the Convention and the Court’s pertinent case-law. Having regard to the subsidiarity principle, the Court should therefore be reluctant to disregard the outcome of the assessment made by the national courts.

Article of the Convention at issue: Article 8
Outcome: no_violation