Communicated on 10 July 2015
THIRD SECTION
Application no. 67295/10
Mounir ISMAIL
against the Netherlands
lodged on 20 October 2010
STATEMENT OF FACTS
1. The applicant, Mr Mounir Ismail, is a Tunisian national, who was born in 1959 and lived in the Netherlands from 1981 until he was deported to Tunisia on 26 July 2011. He was initially represented before the Court by Ms J.S. Özsaran, and is currently represented by Mr. van Dijk, a lawyer practising in Groningen.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant entered the Netherlands in 1981. Between 1982 and 1985 he was granted several residence permits for “stay with Dutch partner”. On 9 August 1985, he was granted a residence permit for “stay with Dutch partner Ms L.”. Each of these residence permits had a limited validity and required explicit prolongation decisions. The applicant did not seek a prolongation of the permit based on his relationship with Ms L. when the validity of this permit expired on 5 April 1986.
Between 1989 and 2006, the applicant was married to a Dutch national (not Ms L.) with whom he has a daughter. This relation did not last long even though the marriage was only dissolved in 2006. He never requested or was granted a residence permit on the basis of this marriage.
The applicant has a brother living in Amsterdam.
4. On 25 February 1992 the applicant’s conviction of attempted manslaughter, which offence he had committed in 1989 and in respect of which he was sentenced to ten years’ imprisonment, became final. On 28 November 1994 the applicant failed to return to prison from a hospital leave. During the time he was at large he met his current wife and started a serious relationship with her around 1995/1996. About a year into this relationship the applicant told his partner about his conviction. They were married on 28 March 2006 and have had four children, born in 2001, 2004, 2005 and 2008 respectively. It appears that during the time he was at large, the applicant spent most of his time with his new family, taking care of the children when his wife went out to work. The applicant’s wife and children are Dutch nationals and the children had always lived in the Netherlands and were receiving their education there. Apart from the youngest child, they lived with their father from their birth until some time in 2007 (when the applicant was re-arrested and detained) and visited him in prison as often as they could. The youngest child had been diagnosed with Down’s syndrome. In 2004 the applicant handed himself in.
5. On 30 September 2004 the applicant’s current wife applied for a pardon on behalf of her husband. The relevant authorities requested an advice from the Amsterdam Court of Appeal which, in its turn, sought an advice from the Advocate General. In his calculation of the total time the applicant had already spent in detention, the Advocate General assumed that the last day of the applicant’s detention had been on 29 November 1995, whereas it had in reality been on 28 November 1994. Based on this assumption the Advocate General advised that, by way of a partial pardon, of the remaining 425 days that the applicant would still have to serve in prison, 180 days should be replaced by 240 hours’ community service (taakstraf). It became apparent only later that this calculation was based on an erroneous assumption of the time spent in prison by the applicant; as a result the calculation of the remaining days was equally wrong. This advice was adopted by the Amsterdam Court of Appeal on 9 February 2005. On 18 February 2005, the Minister of Justice informed the applicant, by way of an interim decision, that the decision on the pardon request would be put on hold and a final decision taken when the confirmation of completion of community service had been received. The Minister also requested the public prosecutor to suspend the execution of the applicant’s sentence. On 15 March 2005 the applicant commenced his community service and finished it by 10 June 2005. However, the confirmation of completion of community service by the applicant was never received by the relevant department within the Ministry of Justice as a result of an error in the message exchange system. This error was rectified in December 2006, when it also came to light that the execution of the applicant’s full sentence had been suspended and not merely the part which had been replaced by community service. On 21 December 2006 the Minister of Justice requested the public prosecutor to annul the suspension of the execution of the full sentence. On 6 February 2007 the applicant was arrested at his house in front of his wife and children in order for the remainder of the sentence to be executed.
6. On 26 March 2007 the applicant’s then representative asked for the applicant’s detention to be suspended and the remainder of the sentence pardoned. The applicant’s partial pardon that had been granted by an interim decision was confirmed by royal decree on 4 July 2007. The request for suspension of detention was rejected by decision of the Minister of Justice of 24 July 2007, in which also the request for a full pardon was rejected. By the same decision the Minister informed the applicant that he would be released on 15 September 2007 ˗ in contrast to a letter of the Advocate General of 3 May 2007 which had indicated that the applicant would be released in August 2008. The Minister had based his decision on the information that the applicant had been detained for a total of five years in the period between 1989 and 1994 (which later, after a statement from the applicant’s then representative, appeared to have been no more than 18 months).
7. On 8 August 2007 the applicant was informed by a department within the Ministry of Justice that his release date would be 14 September 2007. On 12 September 2007 the administration of the prison where the applicant was detained discovered that the information regarding the applicant in their system was wrong. After rectification, and calculation of the total period of time which the applicant had spent in detention, it appeared that he would only be eligible for release in November 2011.
8. On 16 August 2007 the applicant’s wife requested the National Ombudsman to investigate the actions of the Ministry of Justice in relation to the applicant’s detention. In the meantime she and her children continued to visit the applicant in detention.
9. Meanwhile, on 6 August 2007 the Deputy Minister of Justice (Staatssecretaris van Justitie) decided, while the applicant was in detention, to impose an exclusion order (ongewenstverklaring) on him pursuant to the Aliens Act 2000 (Vreemdelingenwet 2000) on the grounds that he posed a threat to public order and had not had lawful residence in the Netherlands since 5 April 1986. This decision automatically entailed his ineligibility for any kind of Netherlands residence title. The Deputy Minister considered that this decision was not in breach of Article 8 as the interference with the applicant’s right to respect for his family life was justified: due to the need to prevent crime and maintain public order, and there not being any insurmountable obstacles to family life being exercised in the applicant’s country of origin, the general interest outweighed the applicant’s individual interests.
10. On 20 August 2007 the applicant filed an objection against this decision. He argued that no fair balance had been struck as the Deputy Minister had failed to take into account that 18 years had passed since he had committed the crime leading to the imposition of the exclusion order; that he had been residing in the Netherlands for a long period of time; that he had turned his life around and that his children and wife were Dutch nationals. In support of his objection he submitted various official documents to indicate that he had had lawful residence in the Netherlands after 1986 – including in 1989 when he had been convicted – and that he had turned his life around. In two of these documents – which relate to the applicant’s placement in a particular prison – it was indicated that the applicant had a residence status and/or lawful stay in the Netherlands. From some of the other documents it appeared that the applicant had not had any problems with prison authorities and had held various jobs in prison.
11. By decision of 14 January 2008 the Deputy Minister rejected the applicant’s objection. However, this decision was repealed on 15 April 2008. On 23 July 2008 an official hearing took place. At this hearing it was further argued on behalf of the applicant that his lawful residence had not ended in 1986, or at least that he had been entitled to assume that his lawful residence had continued. In this connection the applicant claimed that he had been issued an indefinite residence permit in 1989, that he had owned his own company and that he had been told by police that it was no longer necessary to apply for prolongations. He further claimed that he kept the permit in question in a safe, the contents of which had been confiscated at the time of the criminal proceedings against him. The applicant moreover argued that if his stay in the Netherlands had not been lawful, he would not have been able to submit a particular declaration concerning his legal residence as prescribed by the Civil Code prior to his marriage in 2006, but he had submitted that declaration. He would also not have been placed in a semi-open prison, but he was. The applicant added that it appeared from the municipal records of 3 August 2006 that something had been withdrawn in 1989, but no further events had been registered. The applicant expressed his wish to stay in the Netherlands as he had been there for a long time; his wife and children were Dutch nationals who only spoke Dutch and would therefore not be able to settle in Tunisia; his wife was undergoing psychological treatment, and his children were traumatised due to the separation from their father.
12. In a public report of 15 January 2009 the National Ombudsman concluded that the investigation launched by him in relation to a complaint lodged by the applicant’s wife had disclosed numerous erroneous acts relating to a pardon request and that the applicant’s case provided an example of the problems existing between the various services of the Ministry of Justice. In addition to having received incorrect information the applicant had also faced slow decision-making. The Ombudsman further concluded that this did not affect the principle of legal certainty as the applicant should have been aware of the amount of time spent by him in detention and of the remainder of time he still had to serve. The Minister of Justice acknowledged the mistakes that had been made in the execution of the applicant’s sentence. It was decided on 28 October 2008 that the applicant would be granted an additional partial pardon, which took the form of a commutation of six months of the remaining prison sentence into 240 hours of community service.
13. On 20 January 2009 the Deputy Minister of Justice once again rejected the applicant’s objection against the exclusion order. The Deputy Minister held that, although the extract from the municipal records of 3 August 2006 indicated that the applicant had not held a residence title in the Netherlands after 19 August 1988 it could not be deduced from this document that the applicant had in fact held a residence title prior to this date. The applicant had not submitted any proof on the basis of which it could be concluded that his stay had been lawful beyond 5 April 1986. It was also held that starting a business, registering at the Chamber of Commerce, entering into a legal marriage and renewing a driving licence were all possible without having to furnish evidence of lawful stay in the Netherlands. In addition, the applicant’s assertion that he had been placed in a semi open prison because he had a residence permit had also not been substantiated. Given that a crime such as the one of which the applicant had been convicted could, pursuant to the applicable immigration legislation, be held against him for ten years after the sentence had been executed in full, the fact that the applicant had committed the crime at issue eighteen years prior to the imposition of the exclusion order did not entail that that order had been imposed on incorrect grounds as the sentence had not yet been fully executed.
14. In concluding that a greater weight fell to be accorded to the general interest than to the applicant’s personal interest, the Deputy Minister inter alia took into account the seriousness of the crime committed by the applicant. Moreover, even though the applicant had not re-offended, sight should not be lost, according to the Deputy Minister, of the fact that he had evaded detention for thirteen years. While it was true that the applicant had been residing in the Netherlands for a long time, he had not done so lawfully since 5 April 1986 and family life had been created during the applicant’s unlawful stay. The Deputy Minister reiterated that there were no insurmountable obstacles to family life being continued in Tunisia should the applicant’s family members decide to follow him there. In this connection the Deputy Minister noted that these family members could learn the language, that the children were of a young and adaptable age, and that the applicant – who had lived in Tunisia until adulthood, had been back three times and entertained business contacts there – could be expected to assist his family in integrating into his country of origin and construct a social network there.
15. The applicant filed appeal arguing that the exclusion order violated his right to respect for his family life under Article 8 of the Convention. In this regard he referred to the Court’s case law (Sezen v. the Netherlands, no. 50252/99, 31 January 2006; Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006‑XII) from which it could be derived that in assessing the different interests the period of time during which the person could establish and continue family life until the imposition of an exclusion order should be taken into account. In the applicant’s case this had been from 2004 until his arrest in 2007. The applicant further stated that the fact that he had been able to report the birth of his daughter born from his first marriage at the municipality during his leave from detention in 1992 constituted an indication of his stay in the Netherlands being a lawful one. He also claimed that the permission obtained from the Minister of Justice to conclude a marriage with his current wife indicated that he held a valid residence permit. He further argued that he would in any event have been eligible for a residence permit on the basis of his first marriage in 1989.
16. On 11 September 2008 it became apparent that the applicant’s documents, confiscated during the criminal investigation against him, had been destroyed.
17. On 19 November 2009 the Regional Court of The Hague, sitting in Groningen, dismissed the applicant’s appeal. It held that the applicant had failed to demonstrate that he had in fact had lawful stay in the Netherlands beyond 5 April 1986. The court considered, in view of the fact that the applicant had not yet finished serving his sentence, that the Deputy Minister had been entitled to impose the exclusion order even if the crime at the root of that order had been committed eighteen years ago. Moreover the Regional Court agreed with the Deputy Minister that the general interest outweighed the interests of the applicant. The court held that it appeared from the Strasbourg Court’s judgments relied on by the applicant that account had to be taken of whether and for how long an alien was able to build up family life in the Netherlands after release and prior to the imposition of an exclusion order. As the applicant was still detained, there could not be said to have been a period of time after release during which the applicant could have built up his family life in the Netherlands.
18. By decision of 21 April 2010 the Administrative Jurisdiction of the Council of State rejected the applicant’s further appeal with summary reasoning.
19. The applicant was expelled to Tunisia on 26 July 2011. From the case file it appears that the applicant has requested the lifting of the exclusion order. This request was met with an initial refusal and the applicant’s objection against that decision was also rejected. It is not known whether the applicant has lodged an appeal. It further appears that in 2011, after the applicant’s removal, his wife and children joined him in Tunisia.
COMPLAINT
20. The applicant complains under Article 8 of the Convention that the decision to impose an expulsion order on him constituted a disproportionate interference with the right to respect for his family life. He claims that the Government have accorded insufficient weight to his interest, as well as to that of his wife and children, in family life being continued in the Netherlands.
QUESTIONS TO THE PARTIES
Was the interference with the applicant’s right to respect for his family life necessary in a democratic society within the meaning of Article 8 § 2 of the Convention? In particular, did the applicant’s conviction in 1992 (for which a partial pardon was granted in 2007 and 2008) require the imposition of an exclusion order in 2007?
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