Maslov v Austria
| Judge | JUDGE ROZAKIS (PRESIDENT),JUDGES LOUCAIDES,VAJIC,STEINER,HAJIYEV,SPIELMANN,JEBENS,MR S NIELSEN (SECTION REGISTRAR) |
| Judgment Date | 22 March 2007 |
Human rights – Private and family life – Applicant Bulgarian national – Applicant subsequently obtaining permanent residence in Austria – Applicant’s parents and siblings Austrian citizens – Applicant convicted of violent offences – Ten-year residence prohibition imposed – Whether applicant’s right to family life violated – European Convention for the Protection of Human Rights and Fundamental Freedoms, art 8.
The Bulgarian applicant lawfully entered Austria with his parents and siblings in November 1990, and became a legal resident. In 1998, criminal proceedings were instituted against him. On 7 September 1999, the juvenile court convicted the applicant of some 22 counts of partially attempted aggravated gang burglary, of extortion, of partially completed and partially attempted assault, and of the unauthorised use of a vehicle. He was sentenced to 18 months’ imprisonment, 13 months of which were suspended on probation, and he was instructed to start drug therapy. On 11 February 2000, the applicant was arrested and further criminal proceedings were opened against him relating to a series of burglaries. The juvenile court remanded him in custody. On 25 May, the applicant was convicted of 18 counts of partially completed and partially attempted aggravated burglary and sentenced to 15 months’ imprisonment. When sentencing the applicant, the court noted the aggravating and mitigating features, including the fact that he had failed to undergo drug therapy as ordered, and subsequently the suspended sentence that had previously been imposed was revoked. On 3 January 2001, the federal police authority imposed a ten-year residence prohibition on the applicant, pursuant to s 36(1) of the Aliens Act 1997. It had regard to his convictions and found that his further stay in Austria was contrary to public interest. The applicant appealed. He submitted that the residence prohibition violated his rights under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950; that he was a minor who had come to Austria at the age of six; that his entire family lived in Austria; and that he had no relatives in Bulgaria. On 19 July 2001, the Vienna public security authority dismissed the appeal and confirmed the Vienna federal police authority’s finding. The applicant filed complaints with both the administrative court and the constitutional court. On 18 September, the administrative court dismissed the complaint. The court found that the residence prohibition was justified under art 8(2) of the Convention, when taking account of the fact that his first conviction was rapidly followed by a second one, and the severity of the
penalties imposed. The constitutional court declined to deal with the complaint for lack of prospects of success and subsequently the federal police authority requested the applicant to leave Austria. On 14 October 2003, the federal police authority ordered the applicant’s detention with a view to his expulsion. He was arrested on 27 November. On 22 December, he was deported to Sofia. The applicant complained to the European Court of Human Rights that the decisions of the domestic courts had violated his right to respect for his private and family life, his home and his correspondence under art 8 of the Convention.
Held – In order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued, the following criteria had to be considered: (i) the nature and gravity of the offences committed by the applicant; (ii) the length of his stay in the host country; (iii) the period which had elapsed between the commission of the offences and the impugned measure, and the applicant’s conduct during that period; and (iv) the solidity of social, cultural and family ties with the host country and with the country of destination. Having regard to the circumstances of the instant case, in particular to the nature and severity of the offences, which were to be qualified as non-violent juvenile delinquency, the applicant’s good conduct after his release from prison and his lack of ties with his country of origin, a ten-year residence prohibition appeared nevertheless disproportionate to the legitimate aim pursued. Consequently there had been a violation of art 8 of the Convention.
Cases referred to in judgmentAl-Adsani v UK (2001) 12 BHRC 88, ECt HR.
Amann v Switzerland (2000) 30 EHRR 843, [2000] ECHR 27798/95, ECt HR.
Baghli v France [1999] ECHR 34374/94, ECt HR.
Benhebba v France [2003] ECHR 53441/99, ECt HR.
Berrehab v Netherlands (1988) 11 EHRR 322, [1988] ECHR 10730/84, ECt HR.
Bouchelkia v France [1997] ECHR 23078/93, ECt HR.
Boujlifa v France [1997] ECHR 25404/94, ECt HR.
Boultif v Switzerland (2001) 33 EHRR 1179, [2001] ECHR 54273/00, ECt HR.
Dalia v France [1998] ECHR 26102/95, ECt HR.
El Boujaïdi v France (2000) 30 EHRR 223, [1997] ECHR 25613/94, ECt HR.
Ezzouhdi v France [2001] ECHR 47160/99, ECt HR.
Jakupovic v Austria [2003] ECHR 36757/97, ECt HR.
Jankov v Germany [2000] ECHR 35112/92, ECt HR.
McElhinney v Ireland [2001] ECHR 31253/96, ECt HR.
Mehemi v France [1997] ECHR 25017/94, ECt HR.
Olsson v Sweden (1989) 11 EHRR 259, [1988] ECHR 10465/83, ECt HR.
Radovanovic v Austria [2004] ECHR 42703/98, ECt HR.
Uner v Netherlands[2006] 3 FCR 340, ECt HR.
W v UK (1987) 10 EHRR 29, [1987] EHRC 9749/82, ECt HR.
Yildiz v Austria[2003] 2 FCR 182, ECt HR.
Yilmaz v Germany [2003] ECHR 52853/99, ECt HR.
ApplicationThe applicant, Juri Maslov, lodged an application with the European Court of Human Rights against the Republic of Austria, alleging that the residence prohibition against him violated his right to respect for his private and family life. The facts are set out in the judgment.
22 March 2007. The European Court of Human Rights (First Section) delivered the following judgment.
PROCEDURE1. The case originated in an application (no 1638/03) against the Republic of Austria lodged with the court under art 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘the Convention’) by a Bulgarian national, Mr Juri Maslov (‘the applicant’), on 20 December 2002.
2. The applicant was represented by Mr M Deuretsbacher, a lawyer practising in Vienna. The Austrian government (‘the government’) were represented by their agent, Ambassador F Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs. The Bulgarian government did not make use of their right to intervene (art 36(1) of the Convention).
3. The applicant alleged, in particular, that the residence prohibition against him violated his right to respect for his private and family life.
4. The application was allocated to the First Section of the Court (r 52(1) of the Rules of Court). Within that section, the Chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1).
5. By a decision of 2 June 2005 the court declared the application partly admissible.
THE FACTS6. The applicant was born in 1984 and currently lives in Bulgaria.
7. In November 1990 the applicant lawfully entered Austria together with his parents and two siblings. Subsequently, he was legally resident in Austria. His parents were lawfully employed and have meanwhile acquired Austrian nationality. The applicant attended school in Austria.
8. In late 1998 criminal proceedings were instituted against the applicant. He was, inter alia, suspected of having broken into cars, shops and vending machines, of having stolen empties from a stock ground, of having forced another boy to steal 1,000 Austrian schillings from the latter’s mother, of having beaten this boy and thereby having bruised him, and of having used a motor vehicle without the owner’s authorisation.
9. On 7 September 1999 the Vienna Juvenile Court convicted the applicant of some 22 counts of partially completed and partially attempted aggravated gang burglary, of extortion, of partially completed and partially attempted
assault, and of the unauthorised use of a vehicle committed between November 1988 and June 1999. He was sentenced to 18 months’ imprisonment, 13 of which were suspended on probation. Moreover, he was instructed to start drug therapy.
10. 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...
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