Foreign criminals: human rights versus national security

On November 12, 2024, the European Court of Human Rights (ECHR) delivered its judgments in three cases concerning the deportation of foreign criminals by Denmark: Sharafane (n°5199/23), Savuran (n°3645/23) and Al-Habeeb (n°14171/23). The ECLJ was a third party in all three cases and defended the right of states to deport foreign criminals.

In the first case (Sharafane), the ECHR condemned Denmark for deporting an Iraqi cocaine trafficker. In the other two cases, the ECHR upheld the deportation of a Turkish cocaine trafficker (Savuran) and an Iraqi convicted on numerous occasions of violence and assault, including stabbings, as well as attempted theft (Al-Habeeb).

Beyond the individual cases, these three judgments were an opportunity for the ECHR to create a new principle, a form of “guarantee of return” for any deported offender. In each case, the ECHR sought to prevent that “the applicant’s prospects of being readmitted to Denmark after the expiry of the (…) re-entry ban remain purely theoretical.” Thus, Mr. Sharafane's deportation violated his rights, as it does not appear that he will qualify for legal immigration after the six-year re-entry ban period. On the other hand, if the ECHR validated the deportations of Mr Savuran and Mr Al-Habeeb, it is because they will be able to apply for the right to family reunification in order to return to Denmark after their re-entry bans, set at six and twelve years respectively. For example, in the case of Mr. Al-Habeeb, the ECHR states: “The figures seem to indicate (…) that for a person who, like the applicant, has a Danish spouse or long-term cohabiting partner, the prospect of re-entering Denmark on the grounds of family reunification does not remain purely theoretical.”

In other words, a foreign criminal always seems to be able to stay in Europe: either he has a family there, and can therefore return through family reunification, after a few years of re-entry ban, or he has no family in Europe, and ECHR case law will block his deportation.

This change in the case law is part of an ongoing trend. While deportations of foreigners were originally blocked only where there was a risk of torture in the country of origin, since 1988 European judges have also relied on respect for “private and family life.”[1] On this same basis, the ECHR has also recognised its right to block the withdrawal of citizenship of dual nationals since 1999. It banned permanent deportations in 2021. In these three Danish cases, it now prohibits deportations that are not accompanied by a guarantee of return.

The ECLJ has denounced this new “right of return” for foreign criminals in the media: in particular, we invite you to read this article published in The Hungarian Conservative.

The three judgments of November 12 were handed down by a Chamber of seven ECHR judges, as are most judgments. However, only two of the judges on the panel were magistrates. Three other judges were members of NGOs funded by the Open Society: Gabriele Kucsko-Stadlmayer, President of the Chamber, Tim Eicke and Mateja Durovic, recently elected. This is worse than in most judging panels and helps explain this new ideological case law. The ECLJ once again urges the Council of Europe to ensure that magistrates are given preference to be judges at the ECHR. 

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[1] For full case references, please read our written observations in the three cases against Denmark: Sharafane (n°5199/23), Savuran (n°3645/23) et Al-Habeeb (n°14171/23).