ECHR: Can States Still Deport Foreign Drug Traffickers?

In April 2023, the ECLJ was granted leave to intervene at the European Court of Human Rights (ECHR) in two cases concerning the deportation of foreign drug traffickers by Denmark: Zana Sharafane (25) to Iraq and Ilhan Savuran (32) to Turkey. Both cases are due to go to trial in the coming months.

Denmark already condemned in 2021 for expulsions of criminal foreigners

In 2021, the ECHR condemned Denmark twice for expelling foreign criminals[1]. Mohamed Hassan Abdi, a Somali, in addition to convictions for theft, burglary, and drug-related offenses,  was convicted of the more serious crime of illegally possessing a loaded firearm in a public place under particularly aggravating circumstances[2]. Arıf Savran, a Turk, was convicted of aggravated robbery as well as participating in a group’s fatal assault on a man [3].

According to the ECHR, the decisions to expel Mohamed Hassan Abdi and Arıf Savran violated their right to respect for their private lives. It was not the expulsions themselves that the ECHR criticized but the accompanying bans on their return to Denmark. These bans were deemed disproportionate because they were permanent. This kind of challenge to the sovereignty of a State is not provided for in the European Convention on Human Rights. Therefore, with both decisions, the Court has exceeded the mandate entrusted to it by the States. These decisions are open to challenge and are being contested within the Court itself[4].

To comply with this case law, the Danish government passed a bill through Parliament on June 8, 2022[5]. The bill came into force on June 23, 2022. It aims, in particular, to ensure that judges reduce the length of prohibitions on returning to Denmark that accompany decisions to expel foreign criminals. Danish jurisprudence has changed since the law came into force. Thus, although drug traffickers Zana Sharafane and Ilhan Savuran were sentenced to firm prison terms by the High Court in September and October 2022, they are subject to deportation orders that include a mere six-year ban on their return to Denmark.

The State must have the sovereign right to determine whether a foreigner may stay within its territory.

Drug traffickers Zana Sharafane and Ilhan Savuran thought that six years was too long and that this decision would violate their right to privacy. For this reason, they each lodged an application with the ECHR in January 2023. Thus, the Danish government is again being challenged before the ECHR over its expulsions of criminal aliens. The Court will rule on the following question: is forcing foreign drug traffickers to wait six years before returning to Denmark contrary to their right to respect of their private lives?

In its observations, the ECLJ reiterated that it is a well-established principle of international law, already confirmed by the ECHR[6], that the State must have sovereignty to determine whether or not a foreigner may reside on its territory. There is no such thing as a right to live in a particular place. On the one hand, the right to respect due to private life cannot be interpreted as creating an absolute right to dwell wherever one wishes[7]. On the other hand, the right to freedom of movement is exercised only in the context of lawful residence within a State: either within that State or in order to leave it (art. 2 §§ 1-2 of Protocol no. 4). As a consequence of these principles, Zana Sharafane and Ilhan Savuran have no right to remain in a State of which they are not citizens.

Finally, the protection of their own population against narcotics is a positive obligation of States under international law. All member states of the Council of Europe have signed the United Nations drug control conventions: the 1961 Single Convention on Narcotic Drugs (as amended), the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances[8]. Through its decisions to expel drug traffickers, Denmark is legitimately protecting Danes from a scourge.

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[1] Abdi c. Danemark, n° 41643/19, 14 septembre 2021 ; Savran c. Danemark [GC], n° 57467/15, 7 décembre 2021.

[2] Abdi c. Danemark, op. cit., §§ 33 et 34.

[3] Savran c. Danemark [GC], op. cit., § 193.

[4] Six des juges de la Grande chambre ont voté contre la majorité dans l’arrêt Savranet ont démontré dans leur opinion dissidente que le constat de violation de la Cour tranchait avec sa jurisprudence passée. Voir l’opinion dissidente commune aux juges Kjølbro, Dedov, Lubarda, Harutyunyan, Kucsko-Stadlmayer et Poláčková à l’arrêt Savran, notamment §§ 11, 12, 28, 29.

[5] Voir la procédure d’exécution des jugements Savran c. Danemark [GC] et Abdi c. Danemark, pendante au Comité des Ministres.

[6] Abdulaziz, Cabales et Balkandali, n^os 9214/80, 9473/81 et 9474/81, 28 mai 1985, § 67 ; Boujlifa c. France, n° 25404/94, 21 octobre 1997, § 42.

[7] Ward c. Royaume-Uni (déc.), n^o 31888/03, 9 novembre 2004, § 2 ; Codona c. Royaume-Uni (déc.), n^o 485/05, 7 février 2006.

[8] À ce sujet, voir : Damon Barrett, « Politiques en matière de drogues et droits de l’homme en Europe : Gérer les tensions et maximiser les complémentarités », Groupe de coopération en matière de lutte contre l’abus et le trafic illicite des stupéfiants, Conseil de l’Europe, janvier 2018, p. 11.