THIRD SECTION
DECISION
Application no. 16558/07
Yanis RAMZI
against Romania
The European Court of Human Rights (Third Section), sitting on 9 June 2015 as a Chamber composed of:
Josep Casadevall, President,
Luis López Guerra,
Kristina Pardalos,
Johannes Silvis,
Valeriu Griţco,
Iulia Antoanella Motoc,
Branko Lubarda, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 6 April 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Yanis M.M.A. Ramzi, is a Jordanian national, who was born in 1974 and lives in the United Arab Emirates. He was represented before the Court by Ms M. Stoica Josan, a lawyer practising in Bucharest.
2. The Romanian Government (“the Government”) were represented by their Co-Agent, Ms I. Cambrea, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant entered Romania in 1993 in order to follow university studies in Iaşi. In 1999 he moved to Bucharest, where he worked as salesman in a small store.
5. In September 2002, during a search conducted at the applicant’s flat, the police found 20.08 grams of cannabis and 0.08 grams of opium. On 3 December 2002 the Bucharest County Court convicted the applicant of possession of illegal drugs for personal use and sentenced him to two years’ imprisonment. The court also ordered the applicant’s expulsion upon completion of his sentence. In the course of the criminal investigation C.C., the applicant’s girlfriend and a Romanian citizen, was heard as witness. She declared that she had known the applicant for three years and that they had a son together, but she did not live with him. She also stated that he was a decent person and a good father who helped her raising their son. She explained that she had a key to his flat, where she would go once every two weeks or so, depending on the problems she encountered with her son. The applicant did not appeal against the judgment of 3 December 2002.
6. On 3 February 2004, after the applicant had finished serving his sentence, the Aliens Office within the Ministry of Interior, taking into account the applicant’s criminal conviction and based on the provisions of Article 102 of the Emergency Ordinance No. 194/2002 on the status of aliens, issued an order prohibiting him from entering Romania for a period of ten years. The same day, the applicant signed the order, thus acknowledging its receipt. He then left Romania voluntarily.
7. On 7 March 2004 the applicant married C.C. in Jordan. On 1 July 2004 the Slobozia District Court granted a request submitted by C.C. and established the applicant’s paternity of her child.
8. In 2005, the applicant requested the reduction of the ten-year period laid down in the order of 2004. He based his request on an amendment to Emergency Ordinance No. 194/2002 introduced in November 2004, which allowed for a fifty per cent reduction in the term of a prohibition on entering Romania to be applied to illegal aliens who were married to a Romanian citizen or had a child of Romanian citizenship.
9. On 14 February 2005 the Aliens Office replied to the applicant that the new amendment invoked by him did not apply to aliens who had committed crimes in Romania. Moreover, the applicant was informed that the amendment in question had come into force after he had already been expelled from Romania and it could not be applied retroactively.
10. On 5 May 2005 the applicant lodged a complaint before the administrative court against this reply. He requested the courts in his case to apply the more favourable provisions introduced by the new amendment to Emergency Ordinance No. 194/2002. Firstly, he argued that under amended Article 102 (2) of the above-mentioned ordinance he would have the right to a fifty per cent reduction in the term of his prohibition on entering Romania because he had a wife and child who were Romanian citizens. Secondly, he argued that the length of the ban on entering Romania could also be reduced to three years as provided by the newly adopted provisions in cases of aliens who had committed crimes. Lastly, the applicant alleged that the initial measure imposed in his case and the letter of 14 February 2005 rejecting his request for a reduction of the ban breached his right to family life as guaranteed by Article 8 of the Convention since he had a child in Romania who was still a minor.
11. On 19 November 2005 the Bucharest Court of Appeal rejected the applicant’s complaint, reasoning that civil law did not apply retroactively and he could therefore not benefit from the more favourable provisions of Emergency Ordinance No. 194/2002 since they had been adopted after his expulsion. The court pointed out that the applicant had not contested the order of 3 February 2004 setting forth the prohibition on entering Romania. It further held that Article 8 of the Convention had not been breached since the measure adopted in the applicant’s case was provided for by law, pursued the legitimate aim of preserving public order and protecting the rights and liberties of others, and had been applied because of the applicant’s criminal conviction.
12. The applicant’s appeal on points of law (recurs) against this judgment was rejected with final effect by the High Court of Cassation and Justice on 13 December 2006. The High Court, like the lower court, pointed out that the applicant had not contested the initial measure of 3 February 2004 prohibiting him from entering Romania. It further held that the lower court had correctly ruled that the new amendments to Emergency Ordinance No. 194/2002 did not apply retroactively. The High Court also held that the applicant’s allegations of a breach of his right to family life guaranteed by Article 8 of the Convention were ill-founded since he had married and had his paternity established after the issuance of the ban on his entering Romania. Moreover, the High Court observed that the applicant had married in Jordan and had not produced any proof concerning the existence of an actual family life in Romania. Under these conditions, relying on the Court’s judgment in the case of Pini and Others v. Romania (nos. 78028/01 and 78030/01, 22 June 2004), the High Court considered that the authorities’ refusal to apply the newly adopted regulations in the applicant’s case had been a proportionate decision falling within the ambit of the second paragraph of Article 8 of the Convention.
B. Relevant domestic law and international standards
13. Article 117 of the Criminal Code, as in force at the time of the applicant’s conviction and referring to expulsion, reads as follows in its relevant parts:
“A prohibition on remaining in Romania may be imposed on any alien who has committed a crime.”
14. Emergency Ordinance No. 194/2002 on the status of aliens, as it was in force on 3 February 2004, reads as follows in its relevant parts:
Article 80 – Complaint against the order to leave the territory
“The order to leave Romanian territory may be contested before the Bucharest Court of Appeal within 5 days of notification thereof ...”
Article 102 - Establishing the term of the prohibition on entering Romania
“(3) For aliens who have committed crimes, the term of the prohibition shall be equal to the length of their sentence, but no less than ten years.”
15. Following an amendment which entered into force on 27 November 2004, new rules for calculating the term of the prohibition on entering Romania became applicable. Article 102 of the above-mentioned ordinance was amended to read as follows in its relevant parts:
“(1) For aliens who entered Romania illegally but whose stay has become legal, the term of the prohibition [on entering Romania] shall be as follows:...
(2) The limits of the prohibition as set forth in paragraph (1) above shall be reduced by half for the aliens who:
...
d) are married to Romanian citizens or are parents of children of Romanian citizenship who are minors.
(3) For aliens who have committed intentional crimes and have been expelled, the term of the prohibition shall be equal to the length of their sentence, but no less than three years.”
The amendment of 27 November 2004 did not include any special provisions concerning the aliens whose term of prohibition had been established under the former text of the Emergency Ordinance.
COMPLAINT
16. The applicant complained under Article 8 of the Convention that the length of the prohibition on entering Romania imposed on him breached his right to family life.
THE LAW
17. The applicant expressed the view that the excessively long term of the prohibition on entering Romania and his failure to obtain a reduction thereof had prevented him from enjoying family life with his wife and child. He relied on Article 8 of the Convention which, in so far as relevant, provides:
“1. Everyone has the right to respect for his ... family life ...
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 ... for the prevention of disorder or crime, ...”
18. The Government submitted that the applicant had never lived with C.C., had married her only after his expulsion, and had not voluntarily recognised his son. They therefore raised an exception of incompatibility ratione materiae with the provisions of the Convention, alleging that Article 8 was not applicable in the instant case where the applicant had clearly not proved the existence of a family life.
19. The applicant disagreed. He further submitted that a prohibition on entering Romania for such a long period and without any possibility of review was a disproportionate measure which had an irreparable impact on his family life. He alleged that his family life with C.C. and their son had been severely disrupted by his expulsion and that his wife and child could not be expected to join him in Jordan because they do not speak the language, the traditions are different and C.C. had a job in Romania that she could not leave. Lastly, the applicant argued that European Directive 2004/38/EC on the rights of citizens of the European Union and their family members to move and reside freely within the territory of the Member States provides for the possibility of reviewing an order of exclusion from the territory of a Member State after a period of three years when there has been a material change in the circumstances which justified the decision ordering the exclusion. He contended that this provision, in force at the relevant time, should also have been applied in his case.
20. The Court considers that it is not necessary to examine the Government’s submission on compatibility as the application is, in any event, inadmissible for the following reasons.
21. The Court has previously held that while the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 106, 3 October 2014).
22. Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory. Nevertheless, in a case which concerns family life as well as immigration, the extent of a State’s obligations to admit to its territory relatives of persons residing there will vary according to the particular circumstances of the persons involved and the general interest. Factors to be taken into account in this context are the extent to which family life would effectively be ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of the alien concerned and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion (see Butt v. Norway, no. 47017/09, § 78, 4 December 2012).
23. Another important consideration is whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. It is the Court’s well-established case-law that, where this is the case, it is likely only to be in exceptional circumstances that the removal of the non-national family member will constitute a violation of Article 8 (see Rodrigues da Silva and Hoogkamer v. the Netherlands, no. 50435/99, § 39, ECHR 2006-I, and Jeunesse, cited above, § 108).
24. Where children are involved, their best interests must be taken into account (see Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 44, 1 December 2005; mutatis mutandis, Popov v. France, nos. 39472/07 and 39474/07, §§ 139-140, 19 January 2012; and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). On this particular point, the Court reiterates that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests are of paramount importance (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010, and X v. Latvia, cited above, § 96). Whilst alone they cannot be decisive, such interests certainly must be afforded significant weight. Accordingly, national decision-making bodies should, in principle, advert to and assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it (see Jeunesse, cited above, § 109).
25. Turning to the current case, the Court firstly notes that the applicant was notified of the term of the prohibition on entering Romania on 3 February 2004. At that time the applicant was not married, had not recognised his child and had not himself lived with the child and his mother before he had started serving his prison term. He did not lodge any complaint against the order laying down the prohibition and left Romania voluntarily. The Court therefore notes that what is at issue in the present case is the authorities’ refusal to revise and reduce the term of the prohibition on entering Romania following the applicant’s marriage to a Romanian citizen and the subsequent establishment of his paternity of the child – new facts which appeared and were brought to the authorities’ attention after the applicant’s expulsion.
26. The Court notes that it was not disputed that the prohibition on entering Romania was ordered as a result of the applicant’s criminal conviction for possession of illegal drugs (see paragraph 6 above) and was provided for by both the Criminal Code and Article 102 (3) of Emergency Ordinance No. 194/2002 on the status of aliens (see paragraph 14 above). The application to have the term of the prohibition reduced was refused by final judgment by the High Court of Cassation and Justice pursuant to Article 102 (3) of Emergency Ordinance No. 194/2002 in force at the time when the prohibition order was adopted.
27. It was likewise undisputed that the refusal in question sought to achieve an aim which was wholly compatible with the Convention, namely “the prevention of disorder or crime”.
28. It remains to be determined whether the refusal to reduce the term of the prohibition imposed on the applicant was necessary in a democratic society. Accordingly, the Court’s task consists in ascertaining whether this refusal struck a fair balance between the relevant interests, namely the applicant’s right to respect for his family life on the one hand, and the interests of public safety and the prevention of disorder and crime on the other.
29. The Court observes that the applicant did not appeal against the judgment of 3 December 2002 by which the Bucharest County Court convicted him and ordered his expulsion. As already stated above, the applicant did not lodge a complaint against the order prohibiting him from entering Romania issued by the Aliens Office on 3 February 2004 either. He therefore failed to bring to the authorities’ attention his concerns in connection with a possible breach of his right to family life at those two moments in time. It was only after he left Romania, and one year and three months after the adoption of the judgment ordering his expulsion, that the applicant married a Romanian citizen who then instituted proceedings to have his paternity established in respect of her child. Subsequently, invoking his family ties with a wife and child who held Romanian citizenship, the applicant requested that the Romanian authorities apply the more favourable newly adopted legal provisions in order to reduce the ten-year ban on entering Romania in his case.
30. In this respect the Court notes that the applicant’s allegations of a breach of his right to family life were thoroughly analysed by the domestic courts, which attached considerable importance to the fact that the applicant did not contest the initial order imposing the prohibition. The Bucharest Court of Appeal held that, as a principle of civil law, the newly adopted provisions did not apply retroactively. The High Court of Cassation and Justice upheld this reasoning and in addition noted that the applicant did not in any event fulfill the conditions required by the newly adopted provisions since he did not submit any proof demonstrating the existence of an actual family life between him and his wife and child. Taking into account Article 8 of the Convention, the High Court then weighed the applicant’s right to a family life with C.C. and their child against the public interest of preventing disorder or crime and decided on the basis of the documents before it that a refusal to apply the newly adopted legal provisions and to reduce the prohibition was proportionate (see paragraph 12 above).
31. The Court considers that the application by the domestic courts of this rule of procedure – which is provided for by law and has a legitimate aim – in the applicant’s case cannot in itself entail a breach of Article 8. In addition, the higher domestic court went beyond this rule and analysed the applicant’s case on the merits. In support of his application to have the term of the prohibition reduced, the applicant relied mainly on the fact that he was married to a Romanian citizen and had a Romanian child. The evidence shows that the applicant did not initially contest the expulsion judgment or the order prohibiting him from entering Romania and throughout the period of one year and two months which elapsed until his actual exclusion from Romania did not voluntarily recognise his son. He entered into a lawful marriage contract and his paternity vis à vis his son was established while he was in Jordan and already excluded from Romania. Hence, he could not have been unaware of the resulting insecurity. In the domestic court’s view, shared also by the Court, this situation, which was created at a time when he was excluded from Romanian territory, could not therefore be considered decisive (see Dalia v. France, no. 26102/95, § 54, 19 February 1998).
32. Furthermore, the Court notes that the exclusion order against the applicant was not of unlimited duration (see Tajdirti v. the Netherlands (dec.), no. 22050/04, 11 October 2005; and, a contrario, Boultif v. Switzerland, no. 54273/00, §§ 21 and 55, ECHR 2001‑IX).
33. As to the applicant’s complaint referring to Directive 2004/38/EC, apart from the facts that the complaint was made out of time and Romania was not a party to the European Union at the time of the events in question, Article 80 of Emergency Ordinance No. 194/2002 provided the applicant with the possibility of a review, of which he did not avail himself (see paragraph 14 above).
34. Lastly, the Court has also examined the question of whether the applicant and his wife and child had the possibility of establishing their family life elsewhere. In this respect the Court observes that C.C. visited the applicant in Jordan, where they married, and on the date of submission of the current application the applicant was living in the United Arab Emirates. The applicant, who retained his Jordanian citizenship, did not advance any relevant reasons before either the domestic authorities or the Court why he could not have pursued his family life in one of these two countries. In this respect the Court has previously held that the fact that an applicant’s wife had a stable job in her country did not make it exceptionally difficult for her to relocate to her husband’s country (see Akbulut v. the United Kingdom (dec.), no. 53586/08, § 22, 10 April 2012). It must also be pointed out that the applicant’s wife and child did not join him as applicants before the Court (see, a contrario, Sezen v. the Netherlands, no. 50252/99, § 28, 31 January 2006).
35. The Court therefore concludes that, in the circumstances of the present case, the authorities of the Contracting Party cannot be said to have failed to strike a fair balance between the applicant’s interests on the one hand and its own interest in preventing disorder or crime on the other hand.
It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 2 July 2015.
Stephen PhillipsJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy