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FIRST
SECTION
CASE OF MASLOV v. AUSTRIA
(Application
no. 1638/03)
JUDGMENT
STRASBOURG
22 March
2007
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 Maslov v. Austria,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S.
Nielsen, Section Registrar,
Having
deliberated in private on 15 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 1638/03) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Mr Juri Maslov (“the
applicant”), on 20 December 2002.
- The
applicant was represented by Mr M. Deuretsbacher, a lawyer practising
in Vienna. The Austrian Government (“the Government”)
were represented by their Agent, Ambassador F. Trauttmansdorff, Head
of the International Law Department at the Federal Ministry of
Foreign Affairs. The Bulgarian Government did not make use of their
right to intervene (Article 36 § 1 of the Convention).
- The
applicant alleged, in particular, that the residence prohibition
against him violated his right to respect for his private and family
life.
- The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the Chamber
that would consider the case (Article 27 § 1 of the Convention)
was constituted as provided in Rule 26 § 1.
- By
a decision of 2 June 2005 the Court declared the application partly
admissible.
THE FACTS
- The
applicant was born in 1984 and currently lives in Bulgaria.
- In
November 1990 the applicant lawfully entered Austria together with
his parents and two siblings. Subsequently, he was legally resident
in Austria. His parents were lawfully employed and have meanwhile
acquired Austrian nationality. The applicant attended school in
Austria.
- In
late 1998 criminal proceedings were instituted against the applicant.
He was, inter alia, suspected of having broken into cars,
shops and vending machines, of having stolen empties from a stock
ground, of having forced another boy to steal 1,000 Austrian
schillings from the latter's mother, of having beaten this boy and
thereby having bruised him, and of having used a motor vehicle
without the owner's authorisation.
- On
7 September 1999 the Vienna Juvenile Court (Jugendgerichtshof)
convicted the applicant of some 22 counts of partially completed and
partially attempted aggravated gang burglary (gewerbsmäßiger
Bandendiebstahl), of extortion (Erpressung), of partially
completed and partially attempted assault (Körperverletzung),
and of the unauthorised use of a vehicle (unbefugter Gebrauch
eines Fahrzeugs) committed between November 1988 and June 1999.
He was sentenced to 18 months' imprisonment, 13 of which were
suspended on probation. Moreover, he was instructed to start drug
therapy.
- On
11 February 2000 the applicant was arrested and further criminal
proceedings were opened against him relating to a series of
burglaries committed between June 1999 and January 2000. The
applicant and his accomplices were suspected of having broken into
shops or restaurants, where they stole cash and goods. On 11 February
2000 the Vienna Juvenile Court remanded him in custody.
- On
25 May 2000 the Vienna Juvenile Court convicted the applicant of 18
counts of partially completed and partially attempted aggravated
burglary and sentenced him to 15 months' imprisonment. When fixing
the sentence the court noted the applicant's confession as a
mitigating circumstance, the number of offences committed as well as
the rapid relapse into crime after the last conviction as aggravating
circumstances. It also observed that the applicant, though still
living with his parents had completely elapsed their educational
influence, had repeatedly been absent from home, and had dropped out
of school. It also noted that the applicant had failed to comply with
the instruction to undergo drug withdrawal treatment. Consequently,
the suspension of the prison term imposed by the judgment of 7
September 1999 was revoked.
- Following
the Vienna Juvenile Court's judgment, the applicant served his prison
term until 24 May 2002. He did not benefit from early release.
- Meanwhile,
on 3 January 2001 the Vienna Federal Police Authority
(Bundespolizeidirektion), relying on Section 36 § 1 of
the 1997 Aliens Act (Fremdengesetz 1997), imposed a ten years'
residence prohibition on the applicant. Having regard to the
applicant's convictions, it found that his
further stay in Austria was contrary to the public interest.
Considering the applicant's relapse into crime after his first
conviction, the public interest in the prevention of disorder and
crime outweighed the applicant's interest in staying in Austria.
- The
applicant, assisted by counsel, appealed. He submitted that the
residence prohibition violated his rights under Article 8 of the
Convention as he was a minor who had come to Austria at the age of
six, his entire family lived in Austria and he had no relatives in
Bulgaria. He also referred to Section 38 § 1 (4) of the 1997
Aliens Act, pursuant to which a residence prohibition may not be
issued against an alien who has been lawfully residing in Austria
from an early age.
- By
decision of 19 July 2001 the Vienna Public Security Authority
(Sicherheitsdirektion) dismissed the appeal. It confirmed the
Federal Police Authority's finding.
- On
17 August 2001 the applicant filed complaints both with the
Administrative Court (Verwaltungsgerichtshof) and the
Constitutional Court (Verfassungsgerichthof). He stressed that
he had come to Austria at the age of six, had attended school in
Austria and was not able to speak Bulgarian. He had no relatives and
other social contacts in Bulgaria. Moreover, he drew attention to the
fact that he was still a minor.
- On
18 September 2001 the Administrative Court dismissed the complaint
and found that the residence prohibition was justified under Article
8 § 2 of the Convention. It considered that the applicant had
come to Austria only at the age of six, whereas – according to
its constant case-law – Section 38 § 1 (4) only excluded a
residence prohibition for aliens who had been legally resident from
the age of three at the latest. Considering the gravity and the
number of offences committed by the applicant, the fact that the
first conviction was rapidly followed by a second one and the
severity of the penalties imposed, it found that the residence
prohibition did not constitute a disproportionate interference with
the applicant's rights under Article 8, despite his lengthy residence
and family ties in Austria.
- On
25 November 2002 the Constitutional Court declined to deal with the
complaint for lack of prospects of success.
- On
18 August 2003 the Vienna Federal Police Authority requested the
applicant to leave Austria.
- On
14 October 2003 the Vienna Federal Police Authority ordered the
applicant's detention with a view to his expulsion. He was arrested
on 27 November 2003.
- On
22 December 2003 the applicant was deported to Sofia.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained about the residence prohibition against him and
about his subsequent expulsion to Bulgaria. He relied on Article 8 of
the Convention which reads 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.”
A. The submissions of the parties
- The
applicant alleged that the impugned residence prohibition was not in
accordance with the law, as the Administrative Court's interpretation
of Section 38 § 1 (4) of the 1997 Aliens Act distinguished
arbitrarily between the group of second generation immigrants who
came to Austria before the age of three, who may not be subject to a
residence prohibition, and other second generation immigrants like
him, who still came at pre-school age but may be subject to a
residence prohibition.
- In
the applicant's contention, the residence prohibition against him was
disproportionate. He pointed out in particular that he was a second
generation immigrant, having lived in Austria from the age of six. He
had received his entire schooling there and had developed all his
social, cultural and linguistic ties there, while he had no links
with Bulgaria, except his nationality and two brief periods of
holidays he spent there. He had no relatives or friends there and did
not speak or write Bulgarian. Moreover, the applicant criticised that
the impugned decisions did not take account of various factors
speaking in his favour: he had committed the offences at issue at the
age of 14 and 15 respectively, that is during a difficult period of
adolescence and had only played a subordinate role in their
commission. Later, he had not committed any further offences.
- The
fact that the residence prohibition was limited to ten years made
little difference, as the major damage was done by his sudden removal
from his family background and social ties in Austria.
- The
Government contested the applicant's argument that the residence
prohibition against him was not in accordance with Section 38 § 1 (4)
of the 1997 Aliens Act. They argued, in particular, that the
Administrative Court applied its established case-law that the term
“from an early age” in that provision meant aliens who
had grown up in Austria as of the age of three at the latest.
- As
to the necessity of the interference, the Government asserted that
the authorities had duly balanced the interests at stake, when
finding that the public interest in issuing the residence ban
outweighed the applicant's interest in remaining in Austria. They had
regard to the nature of the offences committed by the applicant, the
severity of the penalties imposed and the rapid relapse into crime
after his first conviction. Further, the Government observed that the
applicant only raised the argument that he did not speak or read
Bulgarian at a late stage of the domestic proceedings. In any case,
they found that he must have some knowledge of Bulgarian, as he had
spent the first six years of his life in his country of origin. While
conceding that the applicant received his schooling in Austria, the
Government noted that he had dropped out of school and had not shown
any interest in pursuing vocational training or to take up
employment.
- Finally,
the Government emphasised that the authorities limited the residence
ban to ten years. Moreover, the applicant's expulsion was only
carried out once he had reached the age of majority.
B. The Court's assessment
1. Whether there was an interference
- It
is not in dispute that the residence prohibition against the
applicant and the ensuing expulsion amount to an interference with
his right to respect for his private and family life. It is therefore
necessary to determine whether this interference satisfied the
condition of paragraph 2 of Article 8, that is to say whether it was
“in accordance with the law”, pursued one or more of the
legitimate aims set out in that paragraph, and was “necessary
in a democratic society” for the achievement of that aim or
aims.
2. “In accordance with the law”
- As
to the applicant's argument that the residence prohibition was not
“in accordance with the law”, the Court reiterates that
it is primarily for the national authorities, notably the courts, to
interpret and apply domestic law (see Amann v. Switzerland [GC],
no. 27798/95, § 52, ECHR 2000-II, and Yildiz v. Austria,
no. 37295/97, § 38, 31 October 2002). In the present case, the
residence prohibition had a basis in domestic law, namely Section 36
§ 1 of the 1997 Aliens Act. Further, the Court notes that,
according to the Administrative Court's constant case-law, the
exclusion of a residence prohibition provided for in Section 38 §
1 (4) of the said Act, only applies to aliens who have been legally
resident in Austria from the age of three at the latest. Given that
the applicant only came to Austria at the age of six, it cannot be
said that the authorities arbitrarily refused to apply the provision
at issue in his case.
3. Legitimate aim
- It
is not in dispute between the parties that the residence prohibition
served a legitimate aim, namely the prevention of disorder and crime.
4. “Necessary in a democratic society”
- The
parties' arguments concentrated on the question whether the
interference was “necessary in a democratic society”.
- The
Court reiterates that it is for the Contracting States to maintain
public order, in particular by exercising their right, as a matter of
well established international law and subject to their treaty
obligations, to control the entry and residence of aliens. To that
end they have the power to deport aliens convicted of criminal
offences. However, their decisions in this field must, in so far as
they may interfere with a right protected under paragraph 1 of
Article 8, be necessary in a democratic society, that is to say
justified by a pressing social need and, in particular, proportionate
to the legitimate aim pursued (see, for instance, Üner v. the
Netherlands [GC], no. 46410/99, § 54, ECHR-2006-...;
Boultif v. Switzerland, no. 54273/00, § 46, ECHR
2001-IX with a reference to Dalia v. France, judgment of
19 February 1998, Reports of Judgments and Decisions
1998 I, p. 91, § 52, and Mehemi v. France,
judgment of 26 September 1997, Reports 1997-VI, p. 1971, §
34).
- The
Court has recently confirmed that these principles apply to all
categories of aliens. Even long-term immigrants who were born in the
host State or arrived there during early childhood cannot derive a
right from Article 8 not to be expelled on the basis of their
criminal record, since paragraph 2 of that provision is couched in
terms which clearly allow for exceptions to be made to the rights
guaranteed in the first paragraph (Üner, cited above, §
55).
- Accordingly,
the Court's task in the present case consists in ascertaining whether
the Austrian authorities, by imposing a ten years' residence
prohibition on the applicant, struck a fair balance between the
relevant interests, namely the applicant's right to respect for his
private and family life, on the one hand, and the prevention of
disorder and crime, on the other.
- The
relevant criteria the Court will assess in a case like the present
one, concerning a second generation immigrant, who has not yet
founded a family of his own in the host country are the following:
– the
nature and gravity of the offences committed by the applicant;
– the
length of his stay in the host country;
– the
period which elapsed between the commission of the offences and the
impugned measure and the applicant's conduct during that period;
– the
solidity of social, cultural and family ties with the host country
and with the country of destination (see for instance, Benhebba v.
France, no. 53441/99, §§ 32-33, 10 July
2003 with a reference, among others, to Boultif, cited above,
§ 48, and Mehemi, cited above, § 36; see also,
mutatis mutandis, Üner, cited above, §§
57-58, relating to the situation of a long-term immigrant having a
life companion and children of young age, all being nationals of the
host country).
- The
applicant came to Austria at the age of six and had lived there for
twelve years with his parents and siblings when the residence
prohibition became final. He speaks German and received his entire
schooling in Austria.
- As
to the applicant's criminal record, the Court notes that the
applicant was convicted in September 1999 of numerous counts of
aggravated burglary committed as a member of a gang, unauthorised use
of a vehicle, extortion and bodily assault. A prison term of 18
months' of which 13 were suspended on probation was imposed on him
and he was ordered to undergo drug therapy. He was convicted a second
time in rapid succession, namely in May 2000, of numerous counts of
burglary committed as a member of a gang and was sentenced to a
prison term of 15 months. As he had failed to undergo drug
therapy as ordered, the partial suspension of the first prison term
was revoked.
- The
Court does not deny that the offences committed by the applicant were
of a certain gravity. Nor does the Court disregard the fact that
severe penalties were imposed on the applicant, amounting to a total
of two years' and nine month unconditional imprisonment. However, it
observes that the applicant committed the offences at the age of 14
and 15, during the difficult period of adolescence. The offences
committed are rather typical examples of juvenile delinquency and,
with one exception, did not involve any acts of violence. Nor was the
applicant involved in drug dealing.
- In
the Court's view the present case can, therefore, be distinguished
from a number of cases concerning applicants in a comparable personal
situation (i.e. second generation immigrants who were at the time of
the impugned measures young single adults who had not yet founded a
family of their own in the host country) in which the Court found no
violation as regards the imposition of a residence ban. These cases
concerned violent crime, such as rape or armed robbery, for which
unconditional prison terms of five or more years had been imposed
(see for instance, Bouchelkia v. France, judgment of 29
January 1997, Reports 1997 I, p. 65, §§ 50-53,
and Boujlifa v. France, judgment of 21 October 1997, Reports
1997 VI, pp. 2263-64, § 44) or offences of drug
dealing for which at least partly unconditional prison terms had been
imposed, whereby drug dealing is an area where the Court has shown
understanding of domestic authorities' firmness with regard to those
actively involved in the spread of this scourge (El Bouchaïdi
v. France, judgment of 26 September 1997, Reports 1997-VI,
p. 1992, § 41, and Baghli v. France, no. 34374/97, §
48, ECHR 1999 VIII).
- Moreover,
the Court attaches weight to the period of good conduct after the
applicant's release. It notes that the commission of the offences
ended in January 2000. From February 2000 until May 2002 the
applicant was in prison. Subsequently, he stayed in Austria for
another one and a half years, namely until his expulsion in December
2003. During this time he did not commit any further offences. The
fact that he was able to resume life in freedom without relapsing
into crime during a substantial period mitigates the fear that the
applicant may constitute a danger to public order and security (see,
Boultif, cited above, § 51).
- As
to the solidity of the applicant's social, cultural and family ties
in Austria, the Court observes that the applicant has spent the
formative years of his childhood and youth there and that all his
close family members are living there.
- As
to the applicant's ties with his country of origin, the Government
asserted that the applicant speaks Bulgarian while the latter denies
this. The Court notes that while it appears likely that the
applicant, who lived in Bulgaria until the age of six has some basic
knowledge of the spoken language, it seems credible that he does not
read or write Cyrillic since he never went to school in Bulgaria. Nor
does it appear that he has any close relatives there or that he
maintained any other contacts with his country of origin, except for
spending holidays there twice.
- Finally,
the Government argued that the residence prohibition was limited in
duration. It is true that the duration of a residence prohibition is
to be taken into account when assessing its proportionality. However,
it is only one factor among others (see, as cases in which the
unlimited duration of a residence prohibition was considered as a
factor supporting the conclusion that it was disproportionate:
Ezzouhdi v. France, no. 47160/99, § 35, 13 February
2001; Yilmaz v. Germany, no. 52853/99, §§
48-49, 17 April 2003; Radovanovic v. Austria, no. 42703/98, §
37, 22 April 2004; see as cases in which the limited duration of a
residence probation was considered as a factor in favour of its
proportionality: Benhebba, cited above, § 37; Jankov
v. Germany (dec.), no. 35112/92, 13 January 2000; Üner,
cited above, § 65).
- Having
regard to the circumstances of the present case, in particular to the
nature and severity of the offences, which are to be qualified as
non-violent juvenile delinquency, the applicant's good conduct after
his release from prison and his lack of ties with his country of
origin, a ten years' residence prohibition appears nevertheless
disproportionate to the legitimate aim pursued.
- Consequently,
there has been a violation of Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 5,000 euros (EUR) for non-pecuniary damage suffered
as a result of the separation from his family.
- The
Government argued that the finding of a violation would in itself
provide sufficient just satisfaction.
- Having
regard to its findings in comparable cases (see for instance Yildiz,
cited above, § 51; Jakupovic, cited above, § 37;
Radovanovic v. Austria (just satisfaction), no. 42703/98, §
11, 16 December 2004; Mehemi, cited above, § 41), the
Court agrees with the Government that the finding of a violation
constitutes in itself sufficient just satisfaction for any
non-pecuniary damage suffered by the applicant.
B. Costs and expenses
- The
applicant claimed a total amount of EUR 5,759.96, inclusive of
value-added tax (VAT). This sum is composed of EUR 3,797.96 for the
domestic proceedings and EUR 1,962 for the proceedings before the
Court.
- The
Government observed that the Court was not bound by domestic rates of
fees, although they could serve as a starting point for the
assessment of the applicant's claims.
- The
Court is satisfied that the costs and expenses claimed by the
applicant have been actually and necessarily incurred and are
reasonable as to quantum. It therefore awards them in full, i.e. EUR
5,759.96, inclusive of VAT.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds by four votes to three that there has been
a violation of Article 8 of the Convention.
- Holds by four votes to three
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,759.96 (five
thousand seven hundred and fifty-nine euros ninety-six cents) in
respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 22 March 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following are annexed to this
judgment:
(a) dissenting
opinion of Mr Loucaides;
(b) statement
of dissent by Mrs Vajić;
(c) dissenting
opinion of Mrs Steiner.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGE LOUCAIDES
I am
unable to agree with the majority in this case that there has been a
violation of Article 8 of the Convention. The majority, in reaching
their conclusion, took into account the following facts in
particular: (1) that the offences of which the applicant was
convicted were “to be qualified as non-violent juvenile
delinquency”; (2) “the applicant's good conduct after his
release from prison”; (3) “his lack of ties with his
country of origin”; and (4) the fact that the residence
prohibition was going to have a duration of ten years. The majority
found that the prohibition in question was disproportionate to the
legitimate aim pursued. There are, I believe, other facts which may
lead to a different conclusion, such as those referred to in the
dissenting opinion of Judge Steiner, with which I agree.
What
has been crucial for me is my conclusion that the residence
prohibition in this case cannot be said to have exceeded the margin
of appreciation of the respondent State. I believe that the majority
did not give sufficient weight to this aspect of the case. According
to the Court's case-law, “[i]n determining whether an
interference was 'necessary in a democratic society', the Court makes
allowance for the margin of appreciation that is left to the
Contracting States” (see Berrehab v. the Netherlands,
judgment of 21 June 1988, Series A no. 138, p. 15, § 28; and
also W. v. the United Kingdom, judgment of 8 July 1987, Series
A no. 121 A, p. 27, § 60 (b) and (d), and Olsson v.
Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, pp.
31-32, § 67).
In
view of the nature of the case, it may be useful to bear in mind the
approach of international law on which the power to expel aliens is
founded, to the extent that this approach is compatible with the
relevant provisions of the Convention and the case-law concerning
them. According to international law,
States have the power to expel aliens, though this power is not
absolute. Aliens must be treated in a civilised manner and the power
of expulsion must be exercised in good faith. Due consideration must
be given to the interests of the individual, including his basic
human rights, his family and other links with the State of residence.
These must be weighed against the competing demands of State
interests as regards such matters as public safety and prevention of
disorder or crime. International law allows States a fairly wide
margin of appreciation in determining whether these interests justify
an expulsion. They have the right to judge by national criteria
whether the facts and circumstances warrant the expulsion. As regards
both the grounds for expulsion and the question whether an individual
qualifies for expulsion on those grounds, the expelling State is in
the best position to pronounce upon such matters. State practice
accepts that
expulsion is justified in cases of involvement in criminal
activities. This applies to the facts in the present case.
I
have in the past expressed the view that “general principles of
international law are not embodied in the Convention except in so far
as reference is expressly made to them by the Convention ...
Therefore, one should be reluctant to accept restrictions on
Convention rights derived from principles of international law...”
(see my dissenting opinion in McElhinney v. Ireland [GC], no.
31253/96, ECHR 2001-XI). However, in the present case the
above principles of international law are not irreconcilable with the
provisions of Article 8 of the Convention which are at issue in this
case. It is, I think, useful to recall here the principle established
by the case-law of the Court to the effect that the Convention “...
should so far as possible be interpreted in harmony with other rules
of international law of which it forms part...” (see Al-Adsani
v. the United Kingdom [GC], no. 35763/97, § 55, ECHR
2001-XI). In fact I believe that in the present case it is reasonably
possible to give effect to both the international law principles and
the relevant Convention right without any problem of contradiction
between them.
I
referred to the principles of international law and used them as an
aid for the interpretation and application of the concept of “margin
of appreciation” in the context of expulsion of aliens, which
is a permissible restriction of the right to respect for private life
under Article 8 of the Convention and the jurisprudence of the Court.
It is obvious that the “margin of appreciation” for
expelling aliens plays a special role in such cases.
The
case-law of the Court has interpreted the right to respect for
private life in a progressive manner. According to this case-law, the
right in question includes the prohibition of the absolute power to
expel aliens from a country where they have their residence. Care
should be taken, however, not to overprotect in practice the
corresponding right of non-nationals under Article 8 of the
Convention so as to emasculate the power of States to effectively
enjoy a fairly wide margin of appreciation in safeguarding their
interests in respect of which an expulsion under Article 8 of the
Convention is permissible and determining whether the continued
residence of any alien is or is not necessary.
Having
regard to the foregoing considerations, and taking into account the
facts and circumstances of the case and, in particular, the nature,
seriousness and repetition of the applicant's offences, his lack of
social ties in Austria, and the fact that the residence prohibition
was not unlimited in time, I find that this prohibition was within
the margin of appreciation of the respondent State in the interests
of public safety and for the prevention of disorder or crime, and
therefore does not amount to a violation of Article 8.
STATEMENT OF DISSENT BY JUDGE VAJIĆ
I do
not share the opinion of the majority as to the interpretation made
of the general principles of the Court's case-law as set out in the
recent judgment Üner v. the Netherlands ([GC], no.
46410/99, ECHR 2006 ...).
DISSENTING OPINION OF JUDGE STEINER
I
voted against the finding of a violation of Article 8 for the
following reasons:
- The
applicant came to Austria at the age of six and had lived there for
twelve years with his parents and siblings when the residence
prohibition became final. He speaks German and received his entire
schooling in Austria.
- As
to the nature and gravity of the offences, I note that the applicant
was convicted in September 1999 of numerous counts of aggravated
burglary committed as a member of a gang, unauthorised use of a
vehicle, extortion and bodily assault. A prison term of 18 months of
which 13 were suspended on probation was imposed on him and he was
ordered to undergo drug therapy. He was convicted a second time in
rapid succession, namely in May 2000, of numerous counts of burglary
committed as a member of a gang and was sentenced to a prison term of
15 months. As he had failed to undergo drug therapy as ordered, the
partial suspension of the first prison term was revoked.
- Although
the applicant committed these offences as a juvenile, they are far
from being of a petty nature. Their considerable number, the lengthy
period over which they were committed (November 1998 until January
2000), the fact that two of the offences, namely extortion and
assault, included threat of violence or use of violence against a
person and in particular the rapid recidivism after the first
conviction illustrate their serious nature. This is also expressed by
the severity of the penalties imposed. In sum, the applicant received
unconditional prison terms of two years and nine months.
- The
applicant argues that he committed the offences at an early age and
did not re-offend later. I note that the applicant committed offences
until January 2000. It is true that a period of some three years and
eleven months elapsed before the applicant's expulsion in December
2003 without the commission of any further offences. However, the
applicant spent the major part of this period, namely from February
2000 until May 2002, in prison. He did not benefit from early
release. Therefore, it cannot be said that the applicant's conduct in
the period intervening between the commission of the offences and the
impugned measure mitigates the fear that he constitutes a danger to
public order and security (a contrario, see Boultif,
cited above, § 51).
- As
regards the solidity of the applicant's social, cultural and family
ties in Austria, the authorities noted his lack of integration, in
particular that he had elapsed his parent's educational influence,
had dropped out of school and had failed to undergo drug therapy (see
paragraph 11 above).
- As to his ties with Bulgaria, the Government assert
that the applicant speaks Bulgarian while the latter denies this. I
note that the applicant has spent the first six years of his life in
Bulgaria. It is therefore not credible that he does not at least have
some basic knowledge of Bulgarian. However, given that he never went
to school there it appears credible that he does not read or write
Cyrillic. Nor does it appear that he has any close relatives there or
that he maintained any other contacts with his country of origin,
except spending holidays there twice.
- As
to the proportionality of the impugned measures, I finally note that
the authorities imposed a residence ban of limited duration. In this
context, I observe that in a number of cases it found a residence
prohibition disproportionate on account of its unlimited duration
(see, for instance, Ezzouhdi v. France, no. 47160/99, §
35, 13 February 2001; Yilmaz v. Germany, no.
52853/99, §§ 48-49, 17 April 2003; and Radovanovic
v. Austria, no. 42703/98, § 37, 22 April 2004)
while, in other cases, it has considered the fixed duration of a
residence prohibition as a factor speaking in favour of its
proportionality (see Benhebba, cited above, § 37; Jankov
v. Germany (dec.), no. 35112/92, 13 January 2000; and Üner,
cited above, § 65).
- Having
regard to the foregoing considerations and in particular to the
gravity and repetition of the applicant's offences and his lack of
social ties, I find that by imposing a ten years' residence
prohibition the authorities duly balanced the interests at stake.
Moreover, I observe that although the residence ban was imposed when
the applicant was still a minor, the authorities did not proceed to
his expulsion before he reached majority (see, a contrario,
Jakupovic v. Austria, no. 36757/97, § 29, 6 February
2003, where we attached weight to the fact that the applicant was
only 16 years old when he was expelled). Although, in the present
case, his expulsion must have uprooted the applicant, he was already
an adult at the time and was moreover not left without any
perspective of returning to Austria. I therefore find that the
measures complained of were proportionate to the legitimate aim
pursued.
- Consequently,
there has been no violation of Article 8.
