Judgment (Merits and Just Satisfaction) of Court (Fifth Section), April 23, 2015 (case CASE OF KHAN v. GERMANY)

JudgeGABSA E.
DefenseGERMANY
Resolution DateApril 23, 2015
Issuing OrganizationCourt (Fifth Section)

FIFTH SECTION

CASE OF KHAN v. GERMANY

(Application no. 38030/12)

JUDGMENT

STRASBOURG

23 April 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Khan v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

             Mark Villiger, President,              Angelika Nußberger,              Boštjan M. Zupančič,              Ganna Yudkivska,              André Potocki,              Helena Jäderblom,              Aleš Pejchal, judges,and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 24 March 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 38030/12) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Pakistani national, Ms Farida Kathoon Khan (“the applicant”), on 19 June 2012.

  2. The applicant was represented by Ms E. Gabsa, a lawyer practising in Gießen. The German Government (“the Government”) were represented by their Agent, Mr H. J. Behrens, from the Federal Ministry of Justice.

  3. The applicant alleged that her envisaged expulsion to Pakistan would breach Articles 8 and 6 of the Convention.

  4. On 25 November 2013 the President of the Fifth Section, to which the case was allocated, decided to give notice of the application to the Government.

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  5. The applicant was born in 1963 in Pakistan and currently lives in sheltered accommodation (betreutes Wohnen) in Haina (Land of Hesse, Germany).

  6. In 1990 the applicant married in Pakistan and converted to her husband’s faith, that of the Ahmadiyya.

  7. The applicant and her husband moved to Germany in 1991. The husband was granted refugee status but the applicant’s own application for asylum was refused. As the spouse of a refugee, she received a temporary residence permit on 16 June 1994.

  8. On 11 February 1995 the applicant gave birth to her son. In 1998 the applicant and her husband separated. The son stayed with the applicant. From then on the applicant worked as a cleaner in different companies. On 7 September 2001 she was awarded a permanent residence permit.

  9. In March 2004 the applicant became unemployed due to behavioural issues that appeared to be caused by psychological problems. In July 2004 she and her spouse divorced. In 2005 the domestic family court transferred custody rights over her son to her husband and her son was living with him from then on.

  10. On 31 May 2004 the applicant killed a neighbour by strangling her and pushing her down a staircase. Subsequently, she was detained and held in pre-trial detention. Following an attempt to harm herself, a domestic court ordered her committal to a psychiatric hospital.

  11. On 13 July 2005 the Gießen Regional Court established that the applicant had committed manslaughter in a state of mental incapacity. At the time of the act she had been in a state of acute psychosis. A medical expert noted that she suffered from symptoms of schizophrenia and had diminished intelligence. She did not acknowledge her own psychological condition. The domestic court therefore concluded that she remained a danger for the general public and a continuous stay in a psychiatric hospital had to be ordered. The applicant was also appointed a legal guardian.

  12. On 4 June 2009 the administrative authority Waldeck-Frankenthal ordered the applicant’s expulsion. Relying on Section 55 § 2 of the Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (hereafter “the Residence Act”, Aufenthaltsgesetz, see paragraph 25 below), the authority referred to the offence which had led to the applicant’s committal to the psychiatric hospital and her mental condition in general. The authority concluded that she posed a danger to public safety. In such a case her personal circumstances, namely her long stay in Germany and her residence status, were secondary. She was neither economically integrated nor sufficiently able to communicate in German, which was an obstacle to her therapy. She only had limited contacts with her former husband and her son and she was still familiar with the Pakistani culture. Adequate medical care was available in Pakistan and the applicant’s family there could assist her.

  13. In November 2009 the applicant was granted privileges in the hospital, for example she was granted days of leave, which had not led to any complaints. She also started working full‑time in the laundry department of the clinic. This was possible due to her improved mental health. In proceedings concerning a provisional stay on the expulsion, the authorities committed themselves not to execute the expulsion decision before a court ruling on the merits.

  14. On 1 March 2011 the Kassel Administrative Court refused the applicant’s action against the expulsion order. It upheld the decision that the applicant could be deported, on the grounds of the serious offence committed by her, lack of awareness of her own condition and given that a high probability of reoffending therefore existed. Moreover, she was not integrated into German society, especially due to her lack of German language skills. Article 8 of the Convention was not applicable as the applicant had no significant family relationships. The domestic court noted that, in principle, in Pakistan basic medical care for psychiatric patients existed in big cities like Lahore and that the applicant could afford treatment, including medication, as she would be receiving a small pension in the amount of around 250 euros (EUR). The domestic court recognised that family members in Pakistan had explicitly ruled out that they would take her in, when asked by the German Embassy. However, the domestic court thought it conceivable that the applicant’s relatives would help her with organising the required treatment if she were to provide them with small sums in euros in return. Furthermore, the applicant did not hold a visible position within the Ahmadiyya religion, so there would be no specific danger for her in that regard.

  15. On 23 May 2011 the Hessian Administrative Court of Appeal dismissed the application for leave to appeal. It noted that the administrative court had taken into account all relevant facts of the case.

  16. The applicant complained in vain of the breach of her right to be heard (Gehörsrüge). She argued that her submissions on her improved state of health, the death of her sister in Pakistan and the expected living conditions there had not been given proper consideration. Moreover, she claimed that she had close contact with her son who visited her on a regular basis.

  17. On 24 November 2011 the Marburg Regional Court lifted the hospital treatment order on the recommendation of a medical report and released the applicant on probation, ordering a five-year probation period. It ordered the applicant to remain in regular contact with the medical personnel of the clinic and to continue to take the prescribed medication. The domestic court held that, due to the treatment, the danger of the applicant’s re-offending had diminished to such an extent that a residual risk had to be tolerated.

  18. The medical report in question further indicated that, after having overcome some initial difficulties, she was reachable, while deficits in her cognitive performance remained. The language barrier caused problems during some therapy sessions and due to cognitive deficiencies difficulties remained, even with the assistance of an interpreter. She continued to work in the laundry, took her medication regularly and ultimately showed balanced behaviour. Her son visited her on a regular basis and wished to be more involved in her care. Such involvement, however, would have to be limited due to his situation as a young adult beginning his studies. She was compliant with all requirements and embraced the stable environment in which she was settled. Her prognosis could be considered positive.

  19. The applicant was transferred to sheltered accommodation close to the clinic, where the required structure would be ensured.

  20. On 13 December 2011 the applicant’s constitutional complaint against the deportation order was not admitted for review by the Federal Constitutional Court.

  21. The applicant was notified on 19 September 2013 that a petition to the parliament of the Land of Hesse in this matter had not been successful.

  22. So far, no date for the applicant’s removal to Pakistan has been set.

    1. RELEVANT DOMESTIC LAW

  23. Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (“Residence Act”)

    Section 53Mandatory Expulsion

    “A foreigner shall be expelled, if he or she

  24. has been sentenced by final judgment to a prison term or a term of youth custody of at least three years for one or more intentionally committed offences or several prison terms or terms of youth custody for intentionally committed offences totalling at least three years within a five-year period or preventive detention has been ordered in connection with the most recent final conviction,

  25. has been sentenced by final judgment to at least two years youth custody or to a prison term for an intentionally committed offence under the Narcotics Act, for a breach of the peace under the conditions specified in Section 125a, sentence 2 of the Criminal Code or for a breach of the peace committed at a prohibited public gathering or a prohibited procession pursuant to Section 125 of the Criminal Code and the sentence has not been suspended on probation, or

  26. ...”

    Section 54Regular Expulsion

    “A foreigner will generally be expelled if

  27. he or she has been sentenced by final judgment to at least two years’ youth custody or to a prison term for one or more intentionally committed offences and...

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