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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
- 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
applicant alleged, in particular, that the imposition of an exclusion
order on him and his expulsion to Bulgaria violated his right to
respect for private and family life.
- The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). On 2 June 2005 it was declared
partly admissible by a Chamber of that Section composed of the
following judges: Christos Rozakis, Snejana Botoucharova, Anatoli
Kovler, Elisabeth Steiner, Khanlar Hajiyev, Dean Spielmann, Sverre
Erik Jebens and also of Søren Nielsen, Section Registrar. On
22 March 2007 a Chamber of that Section, composed of the following
judges: Christos Rozakis, Loukis Loucaides, Nina Vajić,
Elisabeth Steiner, Khanlar Hajiyev, Dean Spielmann, Sverre Erik
Jebens together with Søren Nielsen, Section Registrar,
delivered a judgment in which it held, by four votes to three, that
there had been a violation of Article 8 of the Convention and that
the respondent Government should pay the applicant 5,759.96 euros in
respect of costs and expenses.
- On
24 September 2007, pursuant to a request by the respondent
Government, the Panel of the Grand Chamber decided to refer the case
to the Grand Chamber in accordance with Article 43 of the Convention.
- The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court.
- The
applicant and the Government each filed a memorial. The Bulgarian
Government did not make use of their right to intervene (Article 36
§ 1 of the Convention).
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 6 February 2008 (Rule 59 § 3).
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.
- Subsequently,
András Sajó,
substitute judge, replaced Riza Türmen, who was unable to take
part in the further consideration of the case (Rule 24 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in October 1984 and currently
lives in Bulgaria.
- In
November 1990, at the age of six, 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 suspected of, inter alia, having broken into
cars, shops and vending machines; having stolen empties from a stock
ground; having forced another boy to steal 1,000 Austrian schillings
from the latter's mother; having pushed, kicked and bruised this boy;
and of having used a motor vehicle without the owner's authorisation.
- On
8 March 1999, the applicant was granted an unlimited settlement
permit (Niederlassungsbewilligung).
- On
7 September 1999 the Vienna Juvenile Court (Jugendgerichtshof)
convicted the applicant on twenty-two counts of aggravated gang
burglary and attempted aggravated gang burglary (gewerbsmäßiger
Bandendiebstahl); forming a gang (Bandenbildung);
extortion (Erpressung); assault (Körperverletzung);
and unauthorised use of a vehicle (unbefugter Gebrauch eines
Fahrzeugs), committed between November 1998 and June 1999. He was
sentenced to eighteen months' imprisonment, thirteen of which were
suspended on probation. The sentence was accompanied by an order to
undergo 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 on
eighteen counts of aggravated burglary and attempted aggravated
burglary and sentenced him to fifteen months' imprisonment. When
fixing the sentence the court noted the applicant's confession as a
mitigating circumstance and the number of offences committed and 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 escaped 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 order to undergo drug therapy. 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.
- On
3 January 2001 the Vienna Federal Police Authority
(Bundespolizeidirektion), relying on section 36(1) and 2(1) of
the Aliens Act 1997 (Fremdengesetz), imposed a ten-year
exclusion order on the applicant. Having regard to the applicant's
convictions, it found that it was contrary to the public interest to
allow him to stay in Austria any longer. 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
exclusion order 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 an exclusion order could not be issued against an alien who
had been lawfully residing in Austria from an early age.
- By
a 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 lodged 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 could not speak Bulgarian. He had no relatives or other
social contacts in Bulgaria. He also stressed the fact that he was
still a minor.
- On
18 September 2001 the Administrative Court dismissed the complaint
and found that the exclusion order was justified under Article 8
§ 2 of the Convention. It observed that the applicant had
come to Austria only at the age of six, whereas – according to
its constant case-law – section 38(1)(4) of the Aliens Act
1997 prohibited an exclusion order only in respect of aliens
who had been legally resident from the age of three or younger.
Considering the gravity and number of offences committed by the
applicant, the fact that the first conviction had rapidly been
followed by a second one and the severity of the penalties imposed,
it found that the exclusion order did not constitute a
disproportionate interference with the applicant's rights under
Article 8, despite his lengthy residence and family ties in Austria.
- By
decision of 19 September 2001 the Constitutional Court suspended the
effects of the exclusion order pending its decision.
- The
applicant was released from prison on 24 May 2002 not having
benefited from early release. According to the information given by
counsel at the hearing, the applicant finished school during his
prison term and helped in his father's transport business after his
release.
- On
25 November 2002 the Constitutional Court declined to deal with the
applicant's complaint for lack of prospects of success.
- In
December 2002 a number of unsuccessful attempts were made to serve an
order on the applicant to leave Austria.
- On
18 August 2003 the Vienna Federal Police Authority issued a fresh
order requiring the applicant to leave Austria.
- On
14 October 2003 the order was served on the applicant at his parents'
address and subsequently the Vienna Federal Police Authority ordered
his detention with a view to his expulsion. He was arrested on
27 November 2003.
- On
22 December 2003 the applicant was deported to Sofia. According to
information given by counsel at the hearing, the applicant did not
commit any further offences in Bulgaria and has found employment
there.
- At
the hearing the Government informed the Court that the exclusion
order will expire on 3 January 2011 that is ten years after its issue
(see paragraph 17).
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Aliens Act
- At
the material time the Aliens Act 1997 (Fremdengesetz) was in
force. Sections 36 to 38, in so far as relevant, read as follows:
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.”
- The
Administrative Court held that only aliens who had grown up in
Austria from the age of three or younger had grown up there “from
early childhood” within the meaning of section 38 (1) (4) of
the Aliens Act (see for instance decision of 17 September 2001, no.
96/18/0150; judgment of 2 March 1999 no. 98/18/0244; judgment of
21 September 2000, no. 2000/18/0135).
B. Civil Code
- Article
21 (2) of the Civil Code (Allgemeines Bürgerliches
Gesetzbuch) provides:
“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
- The
following two Recommendations of the Committee of Ministers of the
Council of Europe are of particular interest in the context of the
present case:
- The first one is Committee of Ministers Recommendation
Rec(2000)15 concerning the security of long-term migrants which
states, inter alia:
“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.”
- The
second one is Committee of Ministers Recommendation Rec (2002)4
on the legal status of persons admitted for family reunification
which states that where the withdrawal of or the refusal to renew a
residence permit, or the expulsion of a family member, is being
considered:
“... 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
- The
United Nations Convention on the Rights of the Child of 20 November
1989, to which Austria is a State Party, provides:
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 on the Rights of the Child, in its concluding observations
on the second periodic report of Austria (see CRC/C/15/Add. 251, 31
March 2005, §§ 53 and 54), expressed its concern about the
increasing number of persons below the age of 18 placed in detention,
a measure disproportionately affecting those of foreign origin, and
recommended with regard to Article 40 of the Convention on the Rights
of the Child that appropriate measures to promote the recovery and
social integration of children involved in the juvenile justice
system be taken.
- In
its General Comment no. 10 (2007) on Children's rights in juvenile
justice (see CRC/C/GC/10 25 April 2007, § 71), the Committee on
the Rights of the Child emphasised with regard to measures in the
sphere of juvenile justice:
“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
- Given
the membership in the European Union of Austria (as from 1 January
1995) and of Bulgaria (as from 1 January 2007) the following two
Directives should be noted among those dealing with matters of
migration, including the requirements for expulsion of either
nationals of another member State or third-country nationals.
- The
first one is Directive 2003/109/EC of 25 November 2003 concerning the
status of third-country nationals who are long-term residents. It
provides:
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.
...”
- The
second one is Directive 2004/38/EC of the European Parliament and of
the Council of 29 April 2004 on the right of citizens of the Union
and their family members to move and reside freely within the
territory of the Member States. It provides:
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.”
- The
case-law of the Court of Justice of the European Communities (ECJ)
shows that measures of non-admission or expulsion have to rely on the
individual conduct of the person concerned and on an assessment of
whether the person concerned presents a genuine, present and
sufficiently serious threat to public policy, public security or
public health.
- In
its Orfanopoulos v. Land Baden-Württemberg and Oliveri v.
Land Baden-Württemberg judgment of 29 April 2004 (Cases
C-482/01 and C 493/01, operative part, points 3-5) the ECJ
stated:
“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.”
- In
its Commission of the European Communities v. Spain judgment
of 31 January 2006 (Case C-503/03, operative part, point 1) the ECJ
stated:
“... 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
- The
applicant complained about the exclusion order against him and about
his subsequent expulsion to Bulgaria. He relied on Article 8 of the
Convention which, so far as relevant, provides as follows:
“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
Chamber noted that it was not in dispute that there was an
interference with the applicant's private and family life.
- It
accepted that the impugned measure had a basis in domestic law,
namely section 36(1) of the 1997 Aliens Act and that there was
nothing arbitrary in the refusal to apply Section 38(1)(4) of that
Act, which, according to the Administrative Court's constant
case-law, prohibited the imposition of an exclusion order only in
respect of aliens who had been legally resident in Austria from the
age of three or younger. Furthermore, the Chamber noted that it was
not in dispute that the interference served a legitimate aim, namely
the prevention of disorder and crime.
- Having
referred to the Court's established case-law under Article 8 on the
expulsion of foreigners convicted of criminal offences, including the
recent Grand Chamber judgment in the case of Üner v. the
Netherlands ([GC], no. 46410/99, §§ 57-58,
ECHR-2006-...), the Chamber indicated the relevant criteria to be
taken into account, namely:
– 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.
- In
applying these criteria to the present case, the Chamber had regard
to the fact that the applicant had come to Austria with his family at
the age of six, spoke German and had received his entire schooling in
Austria, that the offences committed by him, although of a certain
gravity, were rather typical examples of juvenile delinquency and,
with one exception, did not involve any acts of violence and had not
concerned drug dealing. Moreover, the Chamber attached weight to the
period of good conduct between the applicant's release from prison in
May 2002 and his deportation in December 2003, the solidity of his
social, cultural and family ties in Austria and the lack of ties with
Bulgaria, his country of origin. In view of these elements it found
that, despite its limited duration, the ten-year exclusion order was
disproportionate to the legitimate aim pursued. It therefore found
that there had been a violation of Article 8 of the Convention.
B. The parties' submissions
1. The applicant
- The
applicant emphasised that he had still been a minor when the
exclusion order was imposed and that the measure had therefore first
and foremost affected his “family life”.
- The
applicant agreed with the Chamber's judgment and emphasised that the
Chamber had rightly attached particular weight to the fact that he
had committed the offences as a juvenile and that – with one
exception – they were non-violent offences. Furthermore, he
contested the Government's argument that offences committed by a drug
addict, such as burglary, were to be compared to drug dealing in
gravity. In addition, he relied on the solidity of his family ties,
arguing that following his release from prison he had lived with his
parents and that his mother had even accompanied him to Bulgaria when
he was expelled to help him during the first weeks. He also
underlined the fact that he had received his entire schooling in
Austria and added that, after having dropped out of school at the
time of the commission of the offences, he had completed his
schooling during his prison term.
- Lastly,
the applicant asserted that he had no family or social ties with
Bulgaria. As regards his knowledge of Bulgarian, the applicant
asserted at the hearing that his family belonged to the Turkish
minority in Bulgaria. He therefore had no knowledge of Bulgarian.
2. The Government
- The
Government did not dispute that the exclusion order constituted an
interference with the applicant's private and family life. However,
they noted that, while the applicant had been a minor when the
exclusion order was imposed, he had reached the age of majority in
the course of the proceedings. They added that the relationship
between an adult and his parents did not necessarily qualify as
“family life”.
- Their
further observations concentrated on the necessity of the
interference. They argued that the Chamber's judgment disregarded the
State's margin of appreciation as in fact the Court had not limited
itself to examining whether the guiding principles established by its
case-law had been taken into account but had actually replaced the
domestic authorities' weighing of interests by its own assessment.
The Court had thus acted as a court of appeal or, as was sometimes
said, as a “fourth-instance” court.
- The
Government criticised the lack of clarity of the Court's case-law and
argued that the dynamics of the Court's case-law and differences in
approach or emphasis of the different Chambers made it difficult for
the domestic authorities to avoid decisions which violated Article 8
of the Convention.
- The
Government argued that the Chamber's judgment did not correctly apply
the criteria as set out in Boultif v. Switzerland (no.
54273/00, § 48, ECHR 2001 IX) and Üner (cited
above, § 57). They asserted that the offences committed by the
applicant were of considerable gravity. What was at stake were
offences committed by a drug addict to which similar weight should be
attached as to drugs offences. Moreover, the sentence was
particularly severe, given that, pursuant to section 5(4) of the
Juvenile Court Act, the maximum penalty that could otherwise be
imposed was reduced by one half. The Government also emphasised the
weakness of family ties in that the applicant had escaped the
educational influence of his parents and, contrary to Boultif
and Üner (both cited above), had not yet founded a family
of his own, the weakness of social ties and the lack of integration
in that the applicant had dropped out of school, had not pursued any
vocational or professional training and had never taken up employment
in Austria.
- The
Government had previously claimed that the applicant must have had
some knowledge of Bulgarian since he had spent the first six years of
his life in Bulgaria. However, at the hearing they did not dispute
the explanation given by the applicant as to his lack of knowledge of
Bulgarian (see paragraph 52 above).
- Moreover,
a point of principle raised by the Government was that the Chamber
judgment attached weight to facts which had occurred after the final
domestic decision, namely the applicant's good conduct after his
release from prison in May 2002 until his deportation in December
2003.
- Referring to Kaya v. Germany (no. 31753/02, §
57, 28 June 2007), the Government argued that the time when the
residence prohibition had become final in the domestic proceedings
had to be taken as the relevant point in time, with the consequence
that any later developments were not to be taken into account by the
Court. Any other interpretation, which allowed circumstances that had
occurred after the final domestic decision to be taken into account,
would run counter to the rationale underlying the requirement of
exhaustion of domestic remedies in Article 35 § 1, namely that a
Contracting State was answerable only for alleged violations after
having had an opportunity to put things right through its own legal
system. In fact domestic law provided a possibility for the exclusion
order to be lifted, either on the applicant's request or by the
authorities of their own motion if the reasons underlying it no
longer existed.
- The
Government noted that the present case was unusual in that normally
there was only a short lapse of time between the date when the
exclusion order became final and the date of the expulsion. The
considerable delay in the applicant's case was explained by the fact
that the authorities had waited for the applicant to reach the age of
majority before they expelled him.
C. The Court's assessment
1. Whether there was an interference with the
applicant's right to respect for his private and family life
- The Court considers that the imposition and
enforcement of the exclusion order against the applicant constituted
an interference with his right to respect for his “private and
family life”. It reiterates that the question whether the
applicant had a family life within the meaning of Article 8 must be
determined in the light of the position when the exclusion order
became final (see El Boujaïdi v. France, judgment of 26
September 1997, Reports of Judgments and Decisions 1997-VI, p.
1990, § 33; Ezzouhdi v. France, no. 47160/99, § 25,
13 February 2001; Yildiz v. Austria, no. 37295/97, § 34,
31 October 2002; Mokrani v. France, no. 52206/99, § 34,
15 July 2003; and Kaya, cited above, § 57).
- The
applicant was a minor when the exclusion order was imposed. He had
reached the age of majority, namely 18 years, when the exclusion
order became final in November 2002 following the Constitutional
Court's decision, but he was still living with his parents. In any
case, the Court has accepted in a number of cases concerning young
adults who had not yet founded a family of their own that their
relationship with their parents and other close family members also
constituted “family life” (see Bouchelkia v. France,
judgment of 29 January 1997, Reports 1997 I, p. 63, §
41; El Boujaïdi, cited above, § 33; and Ezzouhdi,
cited above, § 26).
- Furthermore,
the Court observes that not all settled migrants, no matter how long
they have been residing in the country from which they are to be
expelled, necessarily enjoy “family life” there within
the meaning of Article 8. However, as Article 8 also protects the
right to establish and develop relationships with other human beings
and the outside world and can sometimes embrace aspects of an
individual's social identity, it must be accepted that the totality
of social ties between settled migrants and the community in which
they are living constitutes part of the concept of “private
life” within the meaning of Article 8. Regardless of the
existence or otherwise of a “family life”, the expulsion
of a settled migrant therefore constitutes an interference with his
or her right to respect for private life. It will depend on the
circumstances of the particular case whether it is appropriate for
the Court to focus on the “family life” rather than the
“private life” aspect (see Üner, cited above,
§ 59).
- Accordingly,
the measures complained of interfered with both the applicant's
“private life” and his “family life”.
- Such
interference will be in breach of Article 8 of the Convention unless
it can be justified under paragraph 2 of Article 8 as being “in
accordance with the law”, as pursuing one or more of the
legitimate aims listed therein, and as being “necessary in a
democratic society” in order to achieve the aim or aims
concerned.
2. “In accordance with the law”
- The
impugned measure had a basis in domestic law, namely section 36(1)
of the Aliens Act 1997. The applicant did not maintain the argument
that the Administrative Court had arbitrarily refused to apply
section 38(1)(4) of that Act. The Grand Chamber observes, like the
Chamber, that according to the Administrative Court's constant
case-law section 38 (1)(4) only applied to aliens who had grown up in
Austria from the age of three or younger and had been legally
resident there (see paragraphs 31 and 47). The applicant only came to
Austria at the age of six. The Grand Chamber sees no reason to
deviate from the Chamber's finding that the interference complained
of was “in accordance with the law”.
3. Legitimate aim
- It
is not in dispute that the interference served a legitimate aim,
namely the “prevention of disorder or crime”.
4. “Necessary in a democratic society”
(a) General principles
- The
main issue to be determined is whether the interference was
“necessary in a democratic society”. The fundamental
principles in that regard are well established in the Court's
case-law and have recently been summarised as follows (see Üner,
cited above, §§ 54-55 and 57-58):
“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.”
- In
the Üner judgment, as well as in the Boultif judgment
(§ 48) cited above, the Court has taken care to establish the
criteria – which were so far implicit in its case-law –
to be applied when assessing whether an expulsion measure is
necessary in a democratic society and proportionate to the legitimate
aim pursued.
- The
Court would stress that while the criteria which emerge from its
case-law and are spelled out in the Boultif and Üner
judgments are meant to facilitate the application of Article 8 in
expulsion cases by domestic courts, the weight to be attached to the
respective criteria will inevitably vary according to the
specific circumstances of each case. Moreover, it has to be borne in
mind that where, as in the present case, the interference with the
applicant's rights under Article 8 pursues, as a legitimate aim, the
“prevention of disorder or crime” (see paragraph 67
above), the above criteria ultimately are designed to help evaluate
the extent to which the applicant can be expected to cause disorder
or to engage in criminal activities.
- In
a case like the present one, where the person to be expelled is a
young adult who has not yet founded a family of his own, the relevant
criteria are:
– 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.
- The
Court would also clarify that the age of the person concerned can
play a role when applying some of the above criteria. For instance,
when assessing the nature and seriousness of the offences committed
by an applicant, it has to be taken into account whether he or she
committed them as a juvenile or as an adult (see, for instance,
Moustaquim v. Belgium, judgment of 18 February 1991, Series A
no. 193, p. 19, § 44, and Radovanovic v. Austria, no.
42703/98, § 35, 22 April 2004).
- In
turn, when assessing the length of the applicant's stay in the
country from which he or she is to be expelled and the solidity of
the social, cultural and family ties with the host country, it
evidently makes a difference whether the person concerned had already
come to the country during his or her childhood or youth, or was even
born there, or whether he or she only came as an adult. This tendency
is also reflected in various Council of Europe instruments, in
particular in Committee of Ministers Recommendations Rec (2001)15 and
Rec (2002)4 (see paragraphs 34-35 above).
- Although
Article 8 provides no absolute protection against expulsion for any
category of aliens (see Üner, cited above, § 55),
including those who were born in the host country or moved there in
their early childhood, the Court has already found that regard is to
be had 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 (see Üner, § 58 in
fine).
- In
short, the Court considers that for a settled migrant who has
lawfully spent all or the major part of his or her childhood and
youth in the host country very serious reasons are required to
justify expulsion. This is all the more so where the person concerned
committed the offences underlying the expulsion measure as a
juvenile.
- Finally,
the Court reiterates that national authorities enjoy a certain margin
of appreciation when assessing whether an interference with a right
protected by Article 8 was necessary in a democratic society and
proportionate to the legitimate aim pursued (see Slivenko v.
Latvia [GC], no. 48321/99, § 113, ECHR 2003 X,
and Berrehab v. the Netherlands, judgment of 21 June 1988,
Series A no. 138, p. 15, § 28). However, the Court has
consistently held that its task consists in ascertaining whether the
impugned measures struck a fair balance between the relevant
interests, namely the individual's rights protected by the Convention
on the one hand and the community's interests on the other (see,
among many other authorities, Boultif, cited above, §
47). Thus, the State's margin of appreciation goes hand in hand with
European supervision, embracing both the legislation and the
decisions applying it, even those given by an independent court (see,
mutatis mutandis, Société Colas Est and
Others v. France, no. 37971/97, § 47, ECHR 2002-III). The
Court is therefore empowered to give the final ruling on whether an
expulsion measure is reconcilable with Article 8.
(b) Application of the above principles in
the instant case
(i) Nature and seriousness of the offences
committed by the applicant
- The
Court notes that the offences at issue were committed over a period
of a year and three months, namely between November 1998 and January
2000 (paragraphs 14-15 above), when the applicant was between 14 and
15 years old.
- The
applicant's first conviction of September 1999 related to twenty-two
counts of aggravated gang burglary and attempted aggravated gang
burglary; forming a gang; extortion; assault; and unauthorised use of
a vehicle. He was sentenced to eighteen months' imprisonment, of
which thirteen months were suspended on probation. In addition, he
was ordered to undergo drug therapy.
- The
second conviction – of May 2000 – related to eighteen
counts of aggravated burglary and attempted aggravated burglary. The
applicant was sentenced to fifteen months' imprisonment. As a
consequence of his failure to undergo drug therapy, the judgment
revoked the suspension of the first prison term.
- The
Court agrees with the Chamber that the offences committed by the
applicant were of a certain gravity and that severe penalties were
imposed on him amounting to a total of two years and nine months'
unconditional imprisonment. The Government argued that the offences
should be considered to be of a gravity similar to drugs offences, as
the applicant had committed them as a drug addict in order to finance
his drug consumption. The Court disagrees with this view. It is true
that in the sphere of drug dealing the Court has shown understanding
of the domestic authorities' firmness as regards those actively
involved in the spread of this scourge (see, for instance, Dalia
v. France, judgment of 19 February 1998, Reports 1998 I,
p. 92, § 54, and Baghli v. France, no. 34374/97, §
48, ECHR 1999 VIII). However, it has not taken the same approach
as regards those convicted of drug consumption (see Ezzouhdi,
cited above, § 34).
- In
the Court's view, the decisive feature of the present case is the
young age at which the applicant committed the offences and, with one
exception, their non-violent nature. This also clearly distinguishes
the present case from Boultif and Üner (both cited
above) in which violent offences, in the first case robbery and in
the second case manslaughter and assault committed by an adult, were
the basis for imposing exclusion orders. Looking at the applicant's
conduct underlying the convictions, the Court notes that the majority
of the offences concerned breaking into vending machines, cars, shops
or restaurants and stealing cash and goods. The one violent offence
consisted in pushing, kicking and bruising another juvenile. Without
underestimating the seriousness of and the damage caused by such
acts, the Court considers that they can still be regarded as acts of
juvenile delinquency.
- The
Court considers that where offences committed by a minor underlie an
exclusion order regard must be had to the best interests of
the child. The Court's case-law under Article 8 has given
consideration to the obligation to have regard to the best interests
of the child in various contexts (for instance in the field of child
care; see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and
41963/98, § 148, ECHR 2000 VIII), including the expulsion
of foreigners (see Üner, cited above, § 58). In Üner
the Court had to consider the position of children as family members
of the person to be expelled. It underlined that the best interests
and well-being of the children, in particular the seriousness of the
difficulties which any children of the applicant were likely to
encounter in the country to which the applicant was to be expelled,
was a criterion to be taken into account when assessing whether an
expulsion measure was necessary in a democratic society. The Court
considers that the obligation to have regard to the best interests of
the child also applies if the person to be expelled is himself or
herself a minor, or if – as in the present case – the
reason for the expulsion lies in offences committed when a minor. In
this connection the Court observes that European Union law also
provides for particular protection of minors against expulsion (see
paragraph 41 above, Article 28 § 3(b) of Directive 2004/38/EC).
Moreover, the obligation to have regard to the best interests of the
child is enshrined in Article 3 of the United Nations Convention on
the Rights of the Child (see paragraph 36 above).
- The
Court considers that, where expulsion measures against a juvenile
offender are concerned, the obligation to take the best interests of
the child into account includes an obligation to facilitate his or
her reintegration. In this connection the Court notes that Article 40
of the Convention on the Rights of the Child makes reintegration an
aim to be pursued by the juvenile justice system (see paragraphs
36-38 above). In the Court's view this aim will not be achieved by
severing family or social ties through expulsion, which must remain a
means of last resort in the case of a juvenile offender. It finds
that these considerations were not sufficiently taken into account by
the Austrian authorities.
- In
sum, the Court sees little room for justifying an expulsion of a
settled migrant on account of mostly non-violent offences committed
when a minor (see Moustaquim, cited above, § 44,
concerning an applicant who had been convicted of offences committed
as a juvenile, namely numerous counts of aggravated theft, one count
each of handling stolen goods and destruction of a vehicle, two
counts of assault and one count of threatening behaviour, and
Jakupovic v. Austria, no. 36757/97, § 27, 6 February
2003, in which the exclusion order was based on two convictions for
burglary committed when a minor and where, in addition, the applicant
was still a minor when he was expelled).
- Conversely,
the Court has made it clear that very serious violent offences can
justify expulsion even if they were committed by a minor (see
Bouchelkia, cited above, p. 65, § 51, where the Court
found no violation of Article 8 as regards a deportation order made
on the basis of the applicant's conviction of aggravated rape
committed at the age of 17; in the decisions Hizir Kilic v.
Denmark, no. 20277/05, and Ferhat Kilic v. Denmark,
no. 20730/05 both of 22 January 2007, the Court declared
inadmissible the applicants' complaints about exclusion orders
imposed following their convictions for attempted robbery, aggravated
assault and manslaughter committed at the age of 16 and 17
respectively).
(ii) Length of applicant's stay
- The
applicant came to Austria in 1990, at the age of six, and spent the
rest of his childhood and youth there. He was lawfully resident in
Austria with his parents and siblings and was granted a permanent
settlement permit in March 1999.
(iii) Time elapsed since the commission of
the offences and the applicant's conduct during that period
- As
noted above, the applicant committed no further offences after
January 2000. When assessing his conduct since the commission of the
offences, the Chamber had regard to the period up until his expulsion
in December 2003. It attached weight to the period of good conduct
after his release from prison in May 2002, noting that in the one and
a half years prior to his expulsion he did not commit any further
offences.
- In
the Government's opinion, the Chamber should not have had regard to
facts which had occurred after the final domestic decision (see
paragraphs 58-59 above). They argued that the Administrative
Court had given its decision before the applicant's release. In any
case, both the Administrative Court and the Constitutional Court had
to take their decision on the basis of the facts established by the
last-instance administrative authority. In the present case that had
been the decision of the Vienna Public Security Authority of 19 July
2001.
- The
Court notes that the Boultif judgment (cited above, § 51)
established the “time elapsed since the commission of the
offences and the applicant's conduct during that period” as a
criterion to be taken into account. In that case the Court had regard
to the entire period between the commission of the offences in 1994
and the applicant's departure from Switzerland in 2000, considering
that the applicant's exemplary conduct in prison and his employment
thereafter mitigated the fears that he constituted a danger to public
order and security. However, on the facts of the case it is not clear
how much time exactly elapsed between the final domestic decision
given by the Swiss Federal Court in November 1999 and the applicant's
departure “on an unspecified date in 2000” (ibid., §§
19 and 22). In a subsequent case, in which seven months elapsed
between the Austrian Administrative Court's decision in December 1996
and the applicant's departure in July 1997, the Court had regard to
the applicant's good conduct between the last conviction in April
1994 and the termination of the proceedings in December 1996 (see
Yildiz, cited above, §§ 24-26 and 45).
- Under the approach taken in the Boultif
judgment (cited above, §51), the fact that a significant period
of good conduct elapses between the commission of the offences and
the deportation of the person concerned necessarily has a certain
impact on the assessment of the risk which that person poses to
society.
- In
this connection it is to be borne in mind that according to the
Court's established case-law under Article 3, where an expulsion has
taken place before the Court gives judgment, the existence of the
risk the applicant faced in the country to which he was expelled is
to be assessed with reference to those facts which were known or
ought to have been known to the Contracting State at the time of the
expulsion. In cases in which the applicant has not yet been deported
when the Court examines the case, the relevant time will be that of
the proceedings before the Court (see Saadi v. Italy [GC], no.
37201/06, § 133, 28 February 2008). Thus, in these cases the
Court does not limit itself to assessing the situation at the time
when the final domestic decision ordering the expulsion was given.
- The
Court is not convinced by the Government's argument, drawn from
Article 35 § 1 of the Convention, to the effect that
developments which occurred after the final domestic decision should
not be taken into account. It is true that the requirement to exhaust
domestic remedies is designed to ensure that States are only
answerable for their acts before an international body after they
have had an opportunity to put matters right through their own legal
system (see Akdivar and Others v. Turkey, judgment of 16
September 1996, Reports 1996 IV, p. 1210, § 65).
However, such an issue will only arise in the event that a
significant lapse of time occurs between the final decision imposing
the exclusion order and the actual deportation.
- In
this connection the Court would point out that its task is to assess
the compatibility with the Convention of the applicant's actual
expulsion, not that of the final expulsion order. Mutatis
mutandis, this would also appear to be the approach followed by
the European Court of Justice which stated in its Orfanopoulos and
Oliveri judgment that 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 (see paragraph
43 above). Consequently, in such cases it is for the State to
organise its system in such a way as to be able to take account of
new developments. This is not in contradiction with an assessment of
the existence of “family life” at the time when the
exclusion order becomes final, in the absence of any indication that
the applicant's “family life” would have ceased to exist
after that date (see paragraph 61 above). Even if it had done so, the
applicant could still claim protection of his right to respect for
his “private life” within the meaning of Article 8 (see
paragraph 63 above).
- The
Government indicated in this respect that proceedings allowing for a
review of whether the conditions for an exclusion order still
pertained could be instituted either at the applicant's request or at
the initiative of the authorities acting of their own motion. It
follows that in the present case it was open to the domestic
authorities to make a new assessment.
- The
Court will therefore have regard to the applicant's conduct between
the commission of the last offence, in January 2000, and his actual
deportation in December 2003. Of this period of almost three years
and eleven months the applicant spent two years and three and a half
months in prison, namely from 11 February 2000 to 24 May 2002.
Following his release from prison and up until 27 November 2003, when
he was taken into detention with a view to his expulsion, he spent
one and a half years at liberty without reoffending. However, unlike
in the Boultif case (cited above, § 51), little is known
about the applicant's conduct in prison – except that he did
not benefit from early release – and it is even less clear to
what extent his living circumstances had stabilised after his
release. Consequently, unlike the Chamber, the Court considers that
“the time elapsed since the commission of the offences and the
applicant's conduct during this period” carries less weight as
compared to the other criteria, in particular the fact that the
applicant committed mostly non-violent offences when a minor.
(iv) Solidity of social, cultural and
family ties with host country and country of origin
- The Court observes that the applicant spent the
formative years of his childhood and youth in Austria. He speaks
German and received his entire schooling in Austria where all his
close family members live. He therefore has his principal social,
cultural and family ties in Austria.
- As
to the applicant's ties with his country of origin, the Court notes
that he has convincingly explained that he did not speak Bulgarian at
the time of his expulsion as his family belonged to the Turkish
minority in Bulgaria. It was not disputed that he was unable to read
or write Cyrillic as he had never gone to school in Bulgaria. It has
not been shown, nor even alleged, that he had any other close ties
with his country of origin.
(v) Duration of the exclusion order
- Lastly,
when assessing the proportionality of the interference the Court has
regard to the duration of an exclusion order. The Chamber, referring
to the Court's case-law, has rightly pointed out that the duration of
an exclusion measure is to be considered as 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, cited above, § 35;
Yilmaz v. Germany, no. 52853/99, §§
48-49, 17 April 2003; and Radovanovic, cited above, § 37;
see, as cases in which the limited duration of a residence
prohibition was considered as a factor in favour of its
proportionality, Benhebba, cited above, § 37; Jankov
v. Germany (dec.), no. 35112/92, 13 January 2000; and Üner,
cited above, § 65).
- The
Grand Chamber agrees with the Chamber that the limited duration of
the exclusion order is not decisive in the present case. Having
regard to the applicant's young age, a ten-year exclusion order
banned him from living in Austria for almost as much time as he had
spent there and for a decisive period of his life.
(vi) Conclusion
- Having
regard to the foregoing considerations, in particular the
–
with one exception – non-violent nature of the offences
committed when a minor and the State's duty to facilitate his
reintegration into society, the length of the applicant's lawful
residence in Austria, his family, social and linguistic ties with
Austria and the lack of proven ties with his country of
origin, the Court finds that the imposition of an exclusion order,
even of a limited duration, was disproportionate to the legitimate
aim pursued, “the prevention of disorder or crime”. It
was therefore not “necessary in a democratic society”.
- 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
1. The Chamber judgment
- The
Chamber had regard to comparable cases (Yildiz, cited above,
§ 51; Jakupovic, cited above, § 37; Radovanovic
v. Austria (just satisfaction), no. 42703/98, § 11, 16
December 2004; and Mehemi, cited above, § 41) and held
that the finding of a violation constituted in itself sufficient just
satisfaction for any non-pecuniary damage suffered by the applicant.
2. The parties' submissions
- The
applicant maintained his claim of 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.
3. The Court's decision
- The
Court considers that the applicant must have suffered distress and
anxiety as a result of his expulsion. Making an assessment on an
equitable basis it awards the applicant EUR 3,000 under the head of
non-pecuniary damage (see Mokrani, cited above, § 43)
plus any tax that may be chargeable.
B. Costs and expenses
1. The Chamber judgment
- The
Chamber awarded the applicant EUR 5,759.96, inclusive of value-added
tax (VAT), for costs and expenses incurred in the domestic
proceedings and in the Convention proceedings up to and including the
Chamber judgment. This sum was composed of EUR 3,797.96 for the
domestic proceedings and EUR 1,962 for the proceedings before the
Court.
2. The parties' submissions
- Before
the Grand Chamber the applicant maintained his claims in respect of
the domestic proceedings. In respect of the Convention proceedings he
claimed a total amount of EUR 12,190.56, inclusive of VAT, of which
EUR 6,879.84, inclusive of VAT, concerned the proceedings before the
Grand Chamber. In addition, he claimed EUR 457.26 for travel and
subsistence related to counsel's participation at the hearing.
- The
Government noted that costs and expenses up to the conclusion of the
proceedings before the Chamber had been accepted by the Chamber,
which had awarded them in full, namely, EUR 5,759.96. The Government
did not make any comment regarding the costs incurred in the
proceedings before the Grand Chamber.
3. The Court's decision
- Regarding
the costs and expenses of the domestic proceedings and of the
Convention proceedings up to the Chamber judgment, the Court agrees
with the Chamber that they were actually and necessarily incurred and
were reasonable as to quantum and therefore confirms the award of EUR
5,759.96. Regarding the costs and expenses for the proceedings before
the Grand Chamber, the Court also considers that they were actually
and necessarily incurred and were reasonable as to quantum. It
therefore awards the amount claimed, namely EUR 6,879.84, inclusive
of VAT, plus EUR 457.26 for travel and subsistence, that is, a
total amount of EUR 7,337.10.
- Consequently,
the Court awards the applicant a total amount of EUR 13,097.06 under
the head of costs and expenses.
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 sixteen votes to one that there has
been a violation of Article 8 of the Convention;
- Holds by sixteen votes to one
(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;
- Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
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.