Jakupovic v Austria
| Judgment Date | 15 November 2001 |
Human rights – Private and family life – Residence prohibition – Applicant foreign national – Applicant convicted of burglary and deported from respondent state – Whether residence prohibition disproportionate – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The applicant was a Bosnian national, who, in 1991, moved to Austria where his mother was living. His mother subsequently remarried, and his family in Austria then consisted of his mother, step-father, brother and two half-sisters. In 1995, he was convicted of burglary, received a suspended sentence of imprisonment, and was prohibited from residing within Austria for a period of ten years. He appealed against the latter order. In 1996, he was convicted of further offences of burglary. His appeal against the residence prohibition was subsequently dismissed, and in 1997, he was deported to Bosnia-Herzegovina. The applicant complained to the European Court of Human Rights, inter alia, contending that he had close ties with Austria prior to his deportation, and also had a fiancée in Austria, Mrs AS, who had given birth to his son in 1998. He invoked art 8 of the Convention, contending that the residence prohibition breached his right to respect for his private and family life.
Held – (Judges Caflisch, Kuris and Rees dissenting) Very weighty reasons had to be put forward to justify the expulsion of a young person, alone, to a country which had recently experienced a period of armed conflict with its adverse effects on living conditions and with no evidence of close relatives residing there. In the instant case, the applicant’s criminal record, which was the essential element of the Austrian government’s justification for the expulsion, could not be considered by the court as particularly serious as the offences did not involve elements of violence. However, the court would not consider the applicant’s relationship to Mrs AS a weighty element to be taken into account when balancing the interests, as he had not argued that he had entered into the relationship before the residence prohibition was issued against him. In all the circumstances, the Austrian authorities had overstepped their margin of appreciation under art 8 as the reasons in support of the necessity of the residence prohibition were not sufficiently weighty. Therefore, the interference was not proportionate to the legitimate aim pursued. There had, accordingly, been a breach of art 8.
Cases referred to in judgmentBladet Tromso v Norway (1999) 6 BHRC 599, ECt HR.
Boultif v Switzerland [2001] 2 FLR 1228, [2001] ECHR 54273/00, ECt HR.
Dalia v France [1998] ECHR 26102/95, ECt HR.
Mehemi v France [1997] ECHR 25017/94, ECt HR.
Moustaquim v Belgium (1991) 13 EHRR 802, [1991] ECHR 12313/86, ECt HR.
Nasri v France (1995) 21 EHRR 458, [1995] ECHR 19465/92, ECt HR.
ApplicationThe applicant, Elvis Jakupovic, a Bosnia-Herzegovina national, by a case originated in an application (app no 36757/97) against the Republic of Austria lodged with the European Commission of Human Rights (the commission) under former art 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, alleged a violation of art 8 of the Convention, contending that a residence prohibition imposed on him by the Austrian authorities violated his right to respect for his private and family life. The facts are set out in the judgment of the court.
6 February 2003.
THE EUROPEAN COURT OF HUMAN RIGHTS (THIRD SECTION)delivered the following judgment.
Procedure1. The case originated in an application (no 36757/97) against the Republic of Austria lodged with the European Commission of Human Rights (the commission) under former art 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) (the Convention) by a national of Bosnia-Herzegovina, Elvis Jakupovic (the applicant), on 8 April 1997.
2. The applicant was represented by Mr F Schwarzinger, a lawyer practising in Wels (Austria). The Austrian government (the government) were represented by their agent, Ambassador H Winkler, Head of the International Law Department of the Federal Ministry of Foreign Affairs.
3. The applicant complained under art 8 of the Convention that a residence prohibition imposed on him by the Austrian authorities violated his right to respect for his private and family life.
4. The application was transmitted to the court on 1 November 1998, when Protocol No 11 to the Convention came into force (art 5(2) of Protocol No 11).
5. The application was allocated to the third section of the court (r 52(1) of the Rules of Court). Within that section, the...
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...23078/93, ECt HR. Boultif v Switzerland [2001] ECHR 54273/00, ECt HR. Dalia v France [1998] ECHR 26102/95, ECt HR. Jakupovic v Austria[2003] 2 FCR 361, ECt Mehemi v France (No 2) [2003] ECHR 53470/99, ECt HR. Mehemi v France [1997] ECHR 25017/94, ECt HR. Radovanovic v Austria [2004] ECHR 42......