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You are here: BAILII >> Databases >> European Court of Human Rights >> MASLOV v. AUSTRIA - 1638/03 [2008] ECHR 546 (23 June 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/546.html Cite as: [2008] ECHR 546, [2009] INLR 47

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GRAND CHAMBER

CASE OF MASLOV v. AUSTRIA

(Application no. 1638/03)

JUDGMENT

STRASBOURG

23 June 2008

This judgment is final but may be subject to editorial revision.

In the case of Maslov v. Austria,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Jean-Paul Costa, President,
Nicolas Bratza,
Peer Lorenzen,
Françoise Tulkens,
Josep Casadevall,
Ireneu Cabral Barreto,
Karel Jungwiert,
Elisabeth Steiner,
Alvina Gyulumyan,
Ineta Ziemele,
Isabelle Berro-Lefèvre,
Päivi Hirvelä,
Giorgio Malinverni,
András Sajó,

Mirjana Lazarova Trajkovska,
Ledi Bianku,
Nona Tsotsoria, judges,
and Vincent Berger, Jurisconsult,

Having deliberated in private on 6 February and on 28 May 2008,

Delivers the following judgment, which was adopted on the last mentioned date:

PROCEDURE

There appeared before the Court:

(a)  for the Government
Mr F. Trauttmansdorff, Agent,
Ms B. Ohms, Adviser,
Mr C. Schmalzl, Adviser;

(b)  for the applicant
Mr M. Deuretsbacher, Counsel.

The Court heard addresses by Mr Deuretsbacher and Mr Trauttmansdorff, as well as their answers to questions put by a number of judges.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Aliens Act

Section 36

“(1)  An exclusion order can be issued against an alien if it can justifiably be supposed, on the basis of specific facts, that his residence

1.  endangers public peace, order and security or

2.  runs counter to other public interests specified in Article 8 § 2 of the European Convention on Human Rights.

(2)  The existence of specific facts within the meaning of paragraph 1 shall be made out, in particular, if an alien

1.  has been sentenced by a domestic court to an unsuspended term of imprisonment of more than three months; to a term of imprisonment partly suspended on probation; or to a term of imprisonment of more than six months suspended on probation; or has been convicted by final judgment more than once for the same pernicious tendency to commit criminal acts.”

Section 37

“(1)  Should there be an interference with the alien's private or family life on account of ... an exclusion order, such a deprivation of the right of residence shall be permissible only if necessary as a matter of urgency in furtherance of one of the aims set out in Article 8 § 2 of the European Convention on Human Rights.

(2)  ... an exclusion order shall not in any case be issued if its effects on the alien and his family's situation outweigh the adverse consequences of not taking such a measure. In weighing the above factors, regard shall be had in particular to the following circumstances:

1.  the period of residence and the extent to which the alien or members of his family have integrated;

2.  the strength of family or other ties.”

Section 38

“(1)  An exclusion order shall not be issued if

...

4.  the alien has grown up in the host country from early childhood and has been lawfully settled here for many years.”

B.  Civil Code

“Minors are persons who have not yet completed the eighteenth year of their lives. ...”

This version of Article 21 of the Civil Code entered into force on 1 July 2001. Before that date the age of majority was nineteen.

III.  RELEVANT INTERNATIONAL MATERIALS

A.  Instruments of the Council of Europe

“4.  As regards the protection against expulsion

a.  Any decision on expulsion of a long-term immigrant should take account, having due regard to the principle of proportionality and in the light of the European Court of Human Rights' constant case-law, of the following criteria:

–  the personal behaviour of the immigrant;

–  the duration of residence;

–  the consequences for both the immigrant and his or her family;

–  existing links of the immigrant and his or her family to his or her country of origin.

b.  In application of the principle of proportionality as stated in paragraph 4.a, member States should duly take into consideration the length or type of residence in relation to the seriousness of the crime committed by the long-term immigrant. More particularly, member States may provide that a long-term immigrant should not be expelled:

–  after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years' imprisonment without suspension;

–  after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension.

After twenty years of residence, a long-term immigrant should no longer be expellable.

c.  Long-term immigrants born on the territory of the member state or admitted to the member state before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen.

Long-term immigrants who are minors may in principle not be expelled.

d.  In any case, each member state should have the option to provide in its internal law that a long-term immigrant may be expelled if he or she constitutes a serious threat to national security or public safety.”

“... member States should have proper regard to criteria such as the person's place of birth, his age of entry on the territory, the length of residence, his family relationships, the existence of family ties in the country of origin and the solidity of social and cultural ties with the country of origin. Special consideration should be paid to the best interest and wellbeing of children.”

B.  Instruments of the United Nations

Article 1

“For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

Article 3

“1.  In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Article 40

“1.  States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.”

“The Committee wishes to emphasise that the reaction to an offence should always be in proportion not only to the circumstances and the gravity of the offence, but also to the age, lesser culpability, circumstances and needs of the child, as well as to the various and particularly long-term needs of the society. A strictly punitive approach is not in accordance with the leading principles for juvenile justice spelled out in Article 40 (1) of CRC ... In cases of severe offences by children, measures proportionate to the circumstances of the offender and to the gravity of the offence may be considered, including considerations of the need of public safety and sanctions. In the case of children, such considerations must always be outweighed by the need to safeguard the well-being and the best interests of the child and to promote his/her reintegration.”

C.  European Union law and practice

Article 12

“Protection against expulsion

1.  Member States may take a decision to expel a long-term resident solely where he/she constitutes an actual and sufficiently serious threat to public policy or public security.

2.  The decision referred to in paragraph 1 shall not be founded on economic considerations.

3.  Before taking a decision to expel a long-term resident, Member States shall have regard to the following factors:

(a)  the duration of residence in their territory;

(b)  the age of the person concerned;

(c)  the consequences for the person concerned and family members;

(d)  links with the country of residence or the absence of links with the country of origin.

...”

Article 27

“General principles

1.  Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

2.  Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

...”

Article 28

“Protection against expulsion

1.  Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided in its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

2.  The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

3.  An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:

(a)  have resided in the host Member State for the previous 10 years; or

(b)  are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.”

“3.  Article 3 of Directive 64/221 precludes a national practice whereby the national courts may not take into consideration, in reviewing the lawfulness of the expulsion of a national of another Member State, factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of public policy. That is so, above all, if a lengthy period has elapsed between the date of the expulsion order and that of the review of that decision by the competent court.

4.  Article 39 EC and Article 3 of Directive 64/221 preclude legislation and national practices whereby a national of another Member State who has received a particular sentence for specific offences is ordered to be expelled, in spite of family considerations being taken into account, on the basis of a presumption that that person must be expelled, without proper account being taken of his personal conduct or of the danger which he represents for the requirements of public policy.

5.  Article 39 EC and Directive 64/221 do not preclude the expulsion of a national of another Member State who has received a particular sentence for specific offences and who, on the one hand, constitutes a present threat to the requirements of public policy and, on the other hand, has resided for many years in the host Member State and can plead family circumstances against that expulsion, provided that the assessment made on a case-by-case basis by the national authorities of where the fair balance lies between the legitimate interests at issue is made in compliance with the general principles of Community law and, in particular, by taking proper account of respect for fundamental rights, such as the protection of family life.”

“... by refusing entry into the territory of the States party to the Agreement on the gradual abolition of checks at their common borders, signed on 14 June 1985 at Schengen, to Mr Farid, and by refusing to issue a visa for the purpose of the entry into that territory to Mr Farid and Mr Bouchair, nationals of a third country who are the spouses of Member State nationals, on the sole ground that they were persons for whom alerts were entered in the Schengen Information System for the purposes of refusing them entry, without first verifying whether the presence of those persons constituted a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, the Kingdom of Spain has failed to fulfil its obligations under Articles 1 to 3 of Council Directive 64/221of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health.”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

“1.  Everyone has the right to respect for his private and family life, ...

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 Chamber judgment

–  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 the country of destination.

B.  The parties' submissions

1.  The applicant

2.  The Government

C.  The Court's assessment

1.  Whether there was an interference with the applicant's right to respect for his private and family life

2.  “In accordance with the law”

3.  Legitimate aim

4.  “Necessary in a democratic society”

(a)  General principles

“54.  The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 34, § 67, Boujlifa v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997 VI, p. 2264, § 42). The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien 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 in accordance with the law and 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 Dalia v. France, judgment of 19 February 1998, Reports 1998-I, p. 91, § 52; Mehemi v. France, judgment of 26 September 1997, Reports 1997-VI, p. 1971, § 34; Boultif v. Switzerland, cited above, § 46; and Slivenko v. Latvia [GC], no. 48321/99, ECHR 2003-X, § 113).

55.  The Court considers that these principles apply regardless of whether an alien entered the host country as an adult or at a very young age, or was perhaps even born there. In this context the Court refers to Recommendation 1504 (2001) on the non expulsion of long-term immigrants, in which the Parliamentary Assembly of the Council of Europe recommended that the Committee of Ministers invite member States, inter alia, to guarantee that long-term migrants who were born or raised in the host country cannot be expelled under any circumstances (see paragraph 37 above). While a number of Contracting States have enacted legislation or adopted policy rules to the effect that long-term immigrants who were born in those States or who arrived there during early childhood cannot be expelled on the basis of their criminal record (see paragraph 39 above), such an absolute right not to be expelled cannot, however, be derived from Article 8 of the Convention, couched, as paragraph 2 of that provision is, in terms which clearly allow for exceptions to be made to the general rights guaranteed in the first paragraph.

...

57.  Even if Article 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court's case law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision (see, for example, the judgments in Moustaquim v. Belgium, Beldjoudi v. France and Boultif v. Switzerland, cited above; see also Amrollahi v. Denmark, no. 56811/00, 11 July 2002; Yılmaz v. Germany, no. 52853/99, 17 April 2003; and Keles v. Germany, 32231/02, 27 October 2005). In the case of Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria, as reproduced in paragraph 40 of the Chamber judgment in the present case, are the following:

–  the nature and seriousness of the offence committed by the applicant;

–  the length of the applicant's stay in the country from which he or she is to be expelled;

–  the time elapsed since the offence was committed and the applicant's conduct during that period;

–  the nationalities of the various persons concerned;

–  the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life;

–  whether the spouse knew about the offence at the time when he or she entered into a family relationship;

–  whether there are children of the marriage, and if so, their age; and

–  the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.

58.  The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:

–  the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and

–  the solidity of social, cultural and family ties with the host country and with the country of destination.

As to the first point, the Court notes that this is already reflected in its existing case law (see, for example, Şen v. the Netherlands, no. 31465/96, § 40, 21 December 2001, Tuquabo-Tekle and Others v. the Netherlands, no. 60665/00, § 47, 1 December 2005) and is in line with the Committee of Ministers' Recommendation Rec(2002)4 on the legal status of persons admitted for family reunification (see paragraph 38 above).

As to the second point, it is to be noted that, although the applicant in the case of Boultif was already an adult when he entered Switzerland, the Court has held the 'Boultif criteria' to apply all the more so (à plus forte raison) to cases concerning applicants who were born in the host country or who moved there at an early age (see Mokrani v. France, no. 52206/99, § 31, 15 July 2003). Indeed, the rationale behind making the duration of a person's stay in the host country one of the elements to be taken into account lies in the assumption that the longer a person has been residing in a particular country the stronger his or her ties with that country and the weaker the ties with the country of his or her nationality will be. Seen against that background, it is self-evident that the Court will have regard to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there.”

–  the nature and seriousness of the offence committed by the applicant;

–  the length of the applicant's stay in the country from which he or she is to be expelled;

–  the time elapsed since the offence was committed 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.

(b)  Application of the above principles in the instant case

(i)  Nature and seriousness of the offences committed by the applicant

(ii)  Length of applicant's stay

(iii)  Time elapsed since the commission of the offences and the applicant's conduct during that period

(iv)  Solidity of social, cultural and family ties with host country and country of origin

(v)  Duration of the exclusion order

(vi)  Conclusion

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

“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

1.  The Chamber judgment

2.  The parties' submissions

3.  The Court's decision

B.  Costs and expenses

1.  The Chamber judgment

2.  The parties' submissions

3.  The Court's decision

C.  Default interest

FOR THESE REASONS, THE COURT

(a)  that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros) in respect of non-pecuniary damage plus any tax that may be chargeable and EUR 13,097.06 (thirteen thousand and ninety-seven euros six cents) in respect of costs and expenses, plus any tax that may be chargeable to the applicant;

(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;

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 23 June 2008.

Vincent Berger Jean-Paul Costa
Jurisconsult President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Steiner is annexed to this judgment.

J.-P.C.
V.B.

DISSENTING OPINION OF JUDGE STEINER

(Translation)

Much to my regret, and despite the changes that have been made to the “Law” part of the judgment on the question of whether it was necessary to expel the applicant, I am unable to agree with the reasoning of the majority.

My reasons are as follows: I maintain to a large extent the points I made in my dissenting opinion annexed to the Chamber judgment and to which I now refer, with one reservation.

To my mind, the main issue in the present case centres on the assessment of the factors militating for or against the applicant. It goes without saying that I agree with the judgment as far as the general interpretation is concerned. I disagree only with the conclusion as to the proportionality.

The exclusion order of which the applicant complains is of ten years' duration. The majority consider (see paragraphs 98, 99 and 100) that when weighing the interests of the applicant, who was a minor at the material time, against the interest of Austrian society in expelling all aliens who have seriously infringed the law the balance tips in favour of the applicant. The consideration given to the proportionality of the measure must also embrace other factors, including the possibility open to the applicant of requesting – after a certain amount of time has elapsed – that the authorities reverse their decision. He would then be able to argue that he has not committed any further criminal offences in his current country of residence. He would also be able to argue that Bulgaria, of which he is a national, is now a member of the European Union. These two factors combined provide the applicant with a possibility that he did not have before. Having regard to the requirement of proportionality which must also be considered alongside the margin of appreciation afforded to States in a sphere in which the public expects decisions that safeguard individual rights but also the legitimate rights of society, I incline to the conclusion that there has not been a violation.