FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 34029/05
by Hung Phi TRAN
against Norway
The European Court of Human Rights (First Section), sitting on 14 June 2007 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrK. Hajiyev,
MrS.E. Jebens,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 11 September 2005,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Hung Phi Tran, is a Vietnamese national who was born in 1977 and lived in Oslo. He was represented before the Court by Mr S. Gunnes, a lawyer practising in Oslo.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Factual background to the present case
In 1986, when the applicant was nine years old, he and his close family fled Vietnam and arrived as boatpeople in Malaysia. There the applicant stayed in a refugee camp until 30 November 1989, on which date he arrived together with his parents in Norway as a quota refugee.
The applicant was granted a residence permit for one year, which was renewed. In 1994, since he had not applied for an extension for the years 1992 and 1993, the immigration authorities refused his application for a settlement permit but granted him a new residence permit.
The applicant lived with his parents, with whom he spoke Vietnamese, and with his two siblings, with whom he spoke Norwegian. His mastery of Norwegian was relatively poor. According to his own account, until 1997 his social environment had consisted of Vietnamese gangs.
The applicant originates from the city of Kantor in Vietnam, where one of his aunts is still living. He also has one uncle and two cousins in Vietnam His family in Norway kept some contact with family members in Vietnam. His parents visited the country some time around the year 2000.
B. Criminal convictions of the applicant leading to his expulsion
In the so-called “Oslo S” case, the Oslo City Court, by a judgment of 11 April 1997, convicted the applicant for aiding and abetting four instances of physical injury, the most serious of which resulted in death. Prior to that, he had also been convicted of physical assault by a judgment of Nedre Romerike District Court of 1 September 1995.
In October 1997 the Aliens Directorate warned the applicant that his expulsion was being considered and, on 11 September 1998, the Directorate decided to expel him and to withdraw his refugee status. That decision was upheld by the Ministry of Justice 9 June 2000. The applicant requested that the Ministry’s decision be changed but on 25 April 2001 the Aliens Appeals Board rejected his request.
After the withdrawal of his work permit the applicant was no longer occupied in stable gainful employment but helped one of his aunts in running a shop.
On 14 June 2004 the applicant was expelled from Norway and returned to Vietnam, where he has lived since.
C. Judicial proceedings relating to the applicant’s expulsion
In the meantime, in July 2002 the applicant brought proceeding against the State before Oslo City Court, asking for an interlocutory injunction to stop his expulsion. It rejected his request on 25 October 2002, as did Borgarting High Court on 7 January 2003.
Thereafter, in July 2003, the applicant requested the City Court to annul the above decisions of 9 June 2000 and 25 April 2001, but on 23 October 2003, the latter found in favour of the State and rejected his appeal.
On 10 September 2004 the Borgarting High Court overturned that decision and found that the Aliens Appeals Board’s decision of 9 June 2000 was invalid.
On 11 March 2005, the Supreme Court, by three votes to two, found in favour of the State and upheld the Aliens Appeals Board’s decision of 9 June 2000.
For the minority, the first voting judge, Mrs Justice Øye, stated, inter alia that the fact that the person in question had arrived at a young age was not an absolute obstacle to expulsion but was a factor of central importance to the global assessment of whether expulsion would be a disproportionate measure.
Turning to the particular circumstances of the applicant’s case, Mrs Justice Øye did not find that any developments had taken place which would shed a new light on the decision of 9 June 2000.
As regards the seriousness of the offences of violent assault for which the applicant had been convicted, the judge observed that in 1995 the applicant had stabbed two persons with a knife, one of whom got wounds in his arm and stomach and the other a cut in his thigh. In addition, he had hit a person in his head with an iron bar. The applicant was also convicted of aggravated burglary of tobacco and of destroying a shop window. He was sentenced to six months imprisonment, of which five months were made suspended. Regard was had to his difficult childhood, his young age and the fact that he had spent nine months in a child care institution for young violent offenders, of which three months under supervision.
In the 1997 Oslo S case, the applicant had been found guilty of aiding and abetting four instances of violent assault. The offences had been committed, during the night to Sunday 10 September 1995 outside Oslo Sentralbanestasjon (Oslo Central Train Station), in a gang war between youths of respectively Vietnamese and, inter alia, Thai origins. Four persons from the Thai gang had been seriously injured. One person had been stabbed in his back and shoulder with a knife and died from the bleeding. Another person had been stabbed in the back and his arm and was inflicted life threatening haemorrhage. Two persons had been shot respectively in their thigh and chest, as well as been stabbed and cut in several places. Both had sustained injuries leading to more than two week’s illness and/or disability.
As regards the applicant’s role in the incident, Mrs Justice Øye reiterated certain passages from the City Court’s judgment.
“Against the background of inter alia [the applicant]’s account and that of accused no. 11, the City Court finds that B pointed to the applicant with the pistol. Moreover, he shot against the ground next to [the applicant]...
The applicant further explained that immediately before he got up he heard one or two more shots. When he got up he saw a Thai person lying on the ground while a Vietnamese was bending over him. The accused ran over and kicked the Thai person. A person who seemed Norwegian came towards the accused. E carried something which looked like a weapon wrapped into a newspaper. The accused had to react first. He hit the person before he could use the weapon against him ...
The City Court is convinced that when they were in the New Street [Nygaten], [the applicant] decided together with others to attack and injure the ‘Thais’. The court is further convinced that there was an understanding between the applicant and several other Vietnamese to attack and injure the ‘Thais’. ...
The court is convinced that the accused and the other Vietnamese who were active, acted with intent to injure the ‘Thais’. The court is further convinced that this included an intent to inflict serious injury.
On his own account, the accused has confessed, and the court finds it established, that he was an active participant in the scene. ... At that time it was the ‘Thais’ who had to defend themselves. [The applicant] was not in a situation of legitimate self-defence.
By his own activity the accused has contributed to reinforce the intent of others to attack and injure the ‘Thais’, and has contributed to the acts being carried out. The court is convinced that [the applicant] was aware of this as well as conscious about his not having participated without others concurring in the act.
The court has no clear evidence about which of the injuries had been inflicted by the accused himself. However, in light of the common understanding to injure the ‘Thais’, he is to be held criminally liable for all the violations committed by the other members, see Norsk Retstidende 1974, p. 1042.”
In light of the foregoing, Mrs Justice Øye observed that the applicant had been convicted of aiding and abetting a very serious crime, with a maximum penalty of 16 years and six months. The sentence imposed was three years, of which two years were made suspended and the remainder was considered to have been served by the pre-trial detention that was to be deducted. It was a joint sentence for the convictions in 1995 and 1997. A mitigating circumstance was the provoking behaviour of the “Thai” gang, inter alia the pistol shot fired in a most reckless and threatening manner.
Mrs Justice Øye attached weight to the fact that the applicant had not been found guilty of the damaging acts in the Oslo S case, but in aiding and abetting the serious violence committed. The conviction from 1995 showed that the applicant was capable of committing violence with a particularly dangerous object, whereas the theft and the criminal damage carried less weight.
Mrs Justice Øye observed that, during the period between the Oslo S case and the Ministry of Justice’ decision of 9 June 2000, the applicant had been imposed three further criminal sanctions, in respect of matters of less serious character: (i) the possession of drugs, driving without a driving licence and illegal gambling (16 September 1998); (ii) unlawful possession of police scanner (1 February 2000); (iii) purchase and consumption of rohypnol tablets and the possession of smaller quantities of hashish and amphetamine (22 April 2000). These matters illustrated that the applicant still failed to comply with Norwegian law. However, no significant weight could be placed on these less serious offences when considering the question of permanent expulsion from Norway.
Mrs Justice Øye was moreover of the view the applicant’s young age upon arrival in Norway was an important consideration in the assessment of proportionality. He was only nine years old when he left Vietnam and was 12 years and 10 months when he arrived in Norway. He had lived in Norway for eight years when he was warned about his eventual expulsion.
The applicant’s age upon arrival and the duration of his stay in Norway had a bearing on the issue of his links to Norway as compared to Vietnam. Most of his near family was living in Norway. There he had received most of his education and he spoke Norwegian. He had some family in Vietnam and spoke Vietnamese. In Norway he was also part of a Vietnamese gang. Nonetheless, his links to Norway were stronger. He was likely to face particular problems in settling in Vietnam.
The applicant had arrived in Norway as a quota refugee after difficult experiences and had got great psychological and social problems. Despite warnings by, inter alia, his teacher, it appeared that he did not receive the assistance he needed from Norwegian authorities. This was in part due to wrong information having been given about the applicant’s age and family links, a situation that was attributable to his family. Given his young age at the time the applicant himself could not be blamed for this.
Moreover, Mrs Justice Øye considered that the Norwegian authorities ought to be prepared for the fact that quota refugees may have a background making their adaptation to Norway more difficult than usual, especially when they arrived at a young age. Norwegian authorities had a responsibility for ensuring that young quota refugees received sufficient assistance to tackle their new situation. This suggested that one ought to be more cautious than one would otherwise about expelling a quota refugee who had arrived at a young age.
Mrs Justice Øye found, with considerable doubt, that the applicant’s expulsion would constitute a disproportionate measure for the purposes of section 29 of the Aliens Act and that the decisions to expel him were therefore invalid and that the High Court’s judgment should be upheld.
The majority considered that the applicant’s expulsion would not constitute a disproportionate measure and that a judgment should therefore be given in favour of the State.
In her opinion, endorsed in the main by two other judges, Mrs Justice Bruzelius gave the following reasons. She had arrived at a different result than the first voting judge because she considered the criminal acts which the applicant had committed to be more serious with the result that the balancing of interests went the other way. Otherwise she shared the general views expressed by the first voting judge as to the significance of the alien having arrived in Norway at a young age.
Mrs Justice Bruzelius noted that the acts of violence of which the applicant had been convicted in 1995 were several and aggravated. On one occasion he had stabbed two men with a knife. On another occasion he had hit a man in the head with an iron bar. When the stabbing took place, he was accompanied by a gang of Vietnamese. During the night of 10 September 1995, shortly after the trial hearing in the afore-mentioned case, he committed new crimes, which became the subject in the Oslo S case. As described by the first voting judge, this incident involved gang related crime with knifes and fire arms; one person died, another was inflicted life threatening internal haemorrhage and two were seriously injured. Although it was true that the conviction concerned aiding and abetting, this was a particularly serious matter for the type of crime in question. It was precisely the participation by many which made gang crime so dangerous. And the applicant’s case concerned the repetition of violent crime.
Mrs Justice Bruzelius noted that the High Court had held that the criminal acts at issue did not have the same character of cynical thinking and planning which often characterise serious drugs offences and sexual offences, which had constituted the justification for expulsion in previous cases examined by the Supreme Court. Having regard to the interests which were underlying the expulsion rules, Mrs Justice Bruzelius could not see that offences of violent assault, even where it was not the result of planning, should generally be viewed as different from drugs offences and sexual offences. The seriousness of the offences here was underlined by the high level of maximum penalty.
As to the criminal matters in which the applicant had been involved subsequently, Mrs Justice Bruzelius considered that, although they were less serious, they were nonetheless significant. This was partly because they showed that the applicant had not laid crime behind him and partly because they concerned continued dealings with drugs.
When considering the applicant’s criminal offences as a whole, Mrs Justice Bruzelius was of the view that very serious crime was at issue and that this was of such a character that expulsion would be disproportionate only if there were particularly strong countervailing reasons. However, she found that, even though there were clear links militating against expulsion, expulsion would not be a disproportionate measure. Accordingly, the decision to expel the applicant was valid and the City Court’s judgment should therefore be upheld.
COMPLAINT
The applicant complained that the decision to expel him to Vietnam constituted an unjustified interference with his right to respect for family life in violation of Article 8 of the Convention.
THE LAW
Article 8 of the Convention reads:
“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.”
The applicant complained that the decision to expel constituted a disproportionate interference with his right to respect for family life. The measure entailed unjustified differential treatment in comparison with other expulsion cases dealt with by the Norwegian courts. These had concerned significantly more serious offences where the sanction imposed had been markedly more severe. His sentence in the Oslo S case was unusually mild and underlined the fact that it did not concern serious crime in so far as he was concerned. The victims had been heavily armed and had behaved in a very provocative manner. Shots had been fired towards the applicant, who did not possess any fire arm and had not injured anybody.
The applicant further argued that due to an error by the child welfare authorities, no application had been made for a settlement permit for him.
A crucial fact was that the applicant was only nine years old when he left Vietnam and that he had lived in Norway since the age of 12. When the Ministry of Justice took its decision, he had lived in Norway for 11 years. His parents, siblings and other relatives lived in Norway and he had received most of his education there. His attachment to Vietnam was weak; there he had no rights, no accommodation or support.
Moreover, the applicant maintained that especially important in this case was that the crime in question had its origins in Norway. After having gone through dramatic experiences as a refugee, the applicant had arrived in Norway at a very young age. He got great problems, in part because it had been erroneously assumed that his parents lived in Vietnam and that he was several years younger than he actually was. He had neither been helped to apply for settlement permit, nor received the psychological and pedagogical follow-up that he needed. When he arrived as a quota refugee, the Norwegian authorities had taken on a particular responsibility, which they had to stand by.
The Court observes from the outset that it finds no reason to doubt that the applicant’s expulsion to Vietnam entailed an interference with his right to respect for private and family life within the meaning of Article 8 § 1 of the Convention. Nor is there any reason to question that the measure was in accordance with the law in the sense of Article 8 § 2, namely section 29 of the Aliens Act. The Court further considers that the interference pursued the legitimate aims of protecting “public safety” and preventing “disorder or crime”. The only issue to be examined is whether the interference was necessary in a democratic society, in particular, whether it was proportionate to the legitimate aims pursued. In this regard the Court will examine whether the Norwegian Supreme Court, in upholding the Ministry of Justice’s and the Aliens Appeals Board’s decision (of respectively 9 June 2000 and 25 April 2001) to expel the applicant to Vietnam, struck a fair balance between the relevant interests, namely his right to respect for private family life, on the one hand, and the various legitimate interests pursued on the other hand. In so doing the Court will have regard to the criteria stated in its case-law, notably in its Üner v. the Netherlands judgment of 18 October 2006 ([GC], no. 46410/99, §§ 54-59, ECHR 2006‑).
The applicant arrived in Norway in 1989 when he was 12 years and ten months old. He spent a major part of his forming years and received most of his education there and spoke Norwegian. Also his parents, siblings and close relatives had been living in Norway since 1989. The Court does not doubt that the applicant had significant ties with Norway (see Üner, cited above, § 62).
However, in the Court’s view, those ties were not particularly strong. It does not appear that the applicant had founded a family in Norway or had any spousal links with a resident of that country (cf. Üner, cited above, § 63) or was otherwise well integrated. He lived with his parents, with whom he spoke Vietnamese, and with his two siblings, with whom he spoke Norwegian. His mastery of Norwegian was relatively poor. Being without a work permit, he was not occupied in stable gainful employment but helped one of his aunts in running a shop. According to his own account, until 1997 his social environment had consisted of Vietnamese gangs. Moreover, both the nature and the circumstances of the criminal acts that had prompted his expulsion, namely his involvement in gang violence, including intra-ethnic violence, illustrate that he was not well integrated into Norwegian society.
Furthermore, the Court cannot but agree with the majority of the Supreme Court as to the gravity of the crime in question.
It is true that, as pointed out by the minority, the joint sentence imposed for his convictions in 1995 and 1997 was relatively lenient – three years, two of which were suspended. This could be explained, inter alia, by the fact that his 1997 conviction in the Oslo S case had only concerned aiding and abetting the gang violence at issue. There were also a number of mitigating circumstances, including his young age, difficult childhood and, as regards the Oslo S case, the provocative conduct of the adversary gang.
However, the duration of the prison sentence at issue does not mean that his expulsion was not founded on important public order interests of the Contracting State (see, for instance, Boughanemi v. France, judgment of 24 April 1996, Reports of Judgments and Decisions 1996‑II; Nwosu v. Denmark (dec.) no. 50359/99, 10 July 2001; Lagergren v. Denmark (dec.) no. 18668/03, 16 October 2006; Cömert v. Denmark (dec.) no. 14474/03, 10 April 2006). In the Court’s view, it does not detract from the fact that the applicant had been found criminally liable for conduct which involved a very high degree of violence and which entailed particularly serious intentional bodily injury. In 1995 he had been convicted for stabbing two persons with a knife and for hitting a third in the head with an iron bar. In 1997 he had been convicted for aiding and abetting gang violence, where knifes and fire arms were used, leading to the death of one person, to life threatening internal haemorrhage of another person and to serious injuries of two further persons (see Üner, cited above, § 63). Both convictions related to gang violence, a social phenomenon that is particularly prejudicial to public safety, the prevention of disorder and crime. The fact that the type of conduct in question carried a maximum penalty of 16 years’ imprisonment shows that combating and preventing crime of this nature corresponded to very weighty public order interest.
It should moreover be noted that the applicant had important ties with Vietnam, the country where he was born and where he spent the first nine years of his life. He still had family in his country origin and with which his family in Norway had kept a certain contact. It is further clear that during the years he had spent outside Vietnam, he had maintained close ties with Vietnamese milieu and language. His expulsion had been decided when he was 24 and effected when he was 27, at an adult age when his return should not involve too great difficulties. Moreover, his close family in Norway could visit him in Vietnam.
In the light of the above, the Court finds that a fair balance was struck in this case in that the applicant’s expulsion and exclusion from Norway was proportionate to the legitimate aims pursued and therefore necessary in a democratic society.
It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy