SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 22050/04
by Mohamed TAJDIRTI
against the Netherlands
The European Court of Human Rights (Second Section), sitting on 11 October 2005 as a Chamber composed of:
MrJ.-P. Costa, President,
MrI. Cabral Barreto,
MrK. Jungwiert,
MrV. Butkevych,
MrM. Ugrekhelidze,
MrsA. Mularoni,
MrE. Myjer, judges,
and Mrs S. Dolle, Section Registrar,
Having regard to the above application lodged on 11 June 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mohamed Tajdirti, is a Moroccan national who was born in 1971. He lives, as it is stated on the application form, in Waddinxveen (the Netherlands). He was represented before the Court by Mr M.M. van Daalhuizen, a lawyer practising in Rotterdam.
A. The circumstances of the case
1.Background
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant entered the Netherlands in December 1987, at the age of sixteen. He was granted a residence permit (verblijfsvergunning) for the purpose of living with his parents.
In July 1992 the applicant married a woman who held both Moroccan and Netherlands nationality. Later that year the applicant was granted a permanent residence permit (vestigingsvergunning).
A son was born to the applicant and his wife in July 1993.
On 18 April 1997 the applicant committed manslaughter and attempted manslaughter. He was prosecuted, convicted and ultimately sentenced to imprisonment for ten years; his conviction became final on 30 March 1999 as a result of the expiry of the time-limit for lodging an appeal on points of law (cassatie) against the judgment of the Court of Appeal.
The applicant’s wife and son were both granted Netherlands nationality on 3 October 2001, while the applicant was still in prison. They have retained their original Moroccan nationality.
2.Withdrawal of residence permit and exclusion order
On 10 April 2000 the Deputy Minister of Justice (Staatssecretaris van Justitie) in a single decision withdrew the applicant’s permanent residence permit and issued an exclusion order (ongewenstverklaring) against him which cannot be revoked for ten years.
The applicant lodged an objection.
A hearing took place on 10 January 2002 in the prison where the applicant was being held before a board composed of Ministry of Justice officials. The applicant was assisted by counsel.
On 16 January 2002 the Deputy Minister of Justice gave a decision dismissing the applicant’s objection.
The applicant appealed to the Regional Court (arrondissementsrechtbank) of The Hague.
The Regional Court held a hearing on 5 March 2003. On 12 May 2003 the Regional Court declared the appeal well-founded: it was not apparent that the Deputy Minister had balanced the respective interests of the applicant and the general interest in accordance with the guiding principles set out by this Court in Boultif v. Switzerland, no. 54273/00, ECHR 2001‑IX and similar subsequent judgments. The Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie), who by this time had replaced the Deputy Minister of Justice in immigration matters, was ordered to reconsider the case.
A board composed of Ministry officials held a hearing in prison on 10 January 2002. The applicant was again assisted by counsel. The applicant stated, among other things, that his wife had lived in France before marrying him and that her family still lived there; that he and his wife had taken their holidays in Morocco every other year, for six to eight weeks at a time, staying in his father’s house in Tangier; and that his wife and son spoke the Berber language. As to his crime, he had seen the error of his ways and wanted to be given the chance to prove that he was capable of functioning normally in Netherlands society. He submitted two reports by psychologists and a letter from his former employer offering him his job back if work was available.
The Minister gave a decision on 4 August 2003 again dismissing the applicant’s objection. This was not considered disproportionate in the light of the Boultif guiding principles.
The applicant again appealed.
The Regional Court held a hearing on 11 December 2003. On 23 December 2003 it dismissed the applicant’s appeal. It held that the Minister had properly applied the Boultif guiding principles. The applicant’s crime had been very serious indeed; the applicant had a previous criminal record; although the applicant was following a course of therapy in prison, he remained a danger to society; his wife and child spoke Berber; and there was no objective impediment to the resumption of family life, if desired by all those concerned, in Morocco.
3.The applicant’s criminal record
In addition to the above-mentioned ten-year prison sentence for manslaughter and attempted manslaughter, the applicant has served a four-week prison sentence for receiving stolen goods and a three-month prison sentence for a drugs offence. He has also been fined on eleven other occasions, including twice for offences involving weapons, once for causing damage to property and once for another drugs offence.
B. Relevant domestic law
At the relevant time, the decision to withdraw a residence permit and to impose an exclusion order was taken pursuant to sections 14 and 21 of the 1965 Aliens Act (Vreemdelingenwet 1965) as well as the policy laid down in Chapters A4 and A5 of the “1994 Aliens Act Implementation Guidelines” (Vreemdelingencirculaire – a body of directives drawn up and published by the Ministry of Justice).
The principle underlying this policy was, and is, that the longer an alien has lawfully resided in the Netherlands – and the stronger, therefore, his or her ties with the Netherlands are assumed to be –, the more serious an offence must be before it may justify withdrawing a residence permit and excluding the alien from Netherlands territory; the authorities thus apply a variable scale (glijdende schaal).
In accordance with this policy, a residence permit may be withdrawn and an exclusion order imposed on an alien who, at the time of committing the offence, has been lawfully resident in the Netherlands for more than nine but less than ten years – like the applicant in the present case – if he or she is sentenced to an unsuspended prison sentence of more than fifty-four months following a conviction for a serious violent crime or drug trafficking.
If an exclusion order is imposed on the basis of a conviction for a serious violent crime or drug trafficking, this order will in any event be withdrawn, upon request, if the alien concerned has been residing outside the Netherlands for a period of ten years.
A person upon whom an exclusion order has been imposed is not allowed either to reside in the Netherlands or to visit there.
COMPLAINT
The applicant complained under Article 8 of the Convention that the withdrawal of his residence rights and the exclusion order violated his right to respect for, in particular, his “family life”.
THE LAW
The applicant relied on Article 8 of the Convention, which provides 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.”
He expressed the view that his interests and those of the host country had not been properly balanced against each other. In comparison with the effects on his family life, his conviction had weighed too heavily against him. He stated, submitting psychological reports and an offer of employment, that he had reformed in prison and wanted nothing more than a chance to prove that he had mended his ways.
The Court has stated the applicable principles several times since the above-mentioned Boultif judgment, including recently in a judgment involving the same Contracting Party (Üner v. the Netherlands, no. 46410/99, § 40, 5 July 2005).
There is no doubt that the applicant’s offence, manslaughter, was extremely serious. It is also relevant that the applicant has served prison sentences for offences involving drugs and weapons. It is therefore understandable that the Netherlands authorities should consider him a danger to public order and safety.
Although the Court has not been informed of any date on which the applicant was granted conditional release before the nominal end of his sentence, it is clear that he has spent the major part of the period since then, if perhaps not all of it, in prison. Although doubtless the applicant has spent his time in prison usefully, reflecting on his past life and attempting to improve himself, information from which it would follow that there is no longer any real risk of his reoffending is lacking.
The applicant entered the Netherlands at the age of sixteen. He was lawfully resident there for between nine and ten years at the time when he committed the offence in question. He has Moroccan nationality and still speaks Berber, the language of a sizeable proportion of the population of Morocco. It is therefore not apparent that he has lost his links with his country of origin to the extent that he could not be expected to return there to live.
The applicant’s wife and son both have Moroccan in addition to Netherlands nationality. It is apparent that the applicant’s wife entered the Netherlands at approximately the same time as the applicant, having belonged to the Moroccan immigrant community in France until then. Before being sent to prison, the applicant and his family travelled to Morocco for long periods at a time for their holidays. The entire family speak Berber. In these conditions, it cannot be said that continuing or resuming family life in Morocco is not a real option for the applicant’s family.
Finally, it should be taken into account that the exclusion order was not of unlimited duration. The applicant may request the revocation of the exclusion order after ten years.
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.
It follows that this complaint 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.
S. DolléJ.-P. Costa
RegistrarPresident
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