Yildiz and others v Austria
| Judgment Date | 22 May 2001 |
Human rights – Private and family life – Residence ban – First applicant convicted of minor offences – Austria imposing five-year residence ban on first applicant – First applicant’s family intending to reside in Austria – Whether ban violating applicants’ Convention rights – European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 8.
The applicants, who were Turkish nationals, were living in Austria. The first applicant was married to the second applicant, who had been born in Austria and had lived there all of her life. The third applicant was their daughter. Between 1993 and 1994, the first applicant was convicted of several minor offences. In September 1994, the district authority imposed a five-year residence ban on the first applicant. The Public Security Authority dismissed the first applicant’s appeal referring to domestic legislation which provided that a residence ban was to be issued against an alien if he had been convicted more than once for similar offences by a domestic court. The authority found that while the first applicant had a high degree of integration in Austria, the public interest in issuing a residence ban outweighed his interest in staying. The first applicant complained to the Administrative Court, submitting, inter alia, that the domestic provisions were overruled by directly applicable European Community law. The Administrative Court considered and dismissed the first applicant’s complaint. He was subsequently removed to Turkey in 1997. He had not committed any further offences since 1994. The validity of his residence ban expired in 1999. However, he submitted that the possibilities of legally returning to Austria were limited and involved long waiting periods. The second and third applicants visited the first applicant on a number of occasions. However, the first and second applicants divorced in 2001. The applicants complained to the European Court of Human Rights that the residence ban issued against the first applicant violated their right to respect for their private and family life under art 8 of the Convention.
Held – For the purposes of art 8(2) of the Convention, an interference with the right to respect for private and family life would constitute an infringement of that right unless it was determined that the interference was ‘in accordance with the law’ motivated by one or more of the legitimate aims and ‘necessary in a democratic society’. To be ‘necessary in a democratic society’ the interference had to be justified by a pressing social need, and, in particular, proportionate to the legitimate aim pursued. In the instant case, the residence ban had the effect
of separating the applicants’ family unit, and as such amounted to an interference with their private and family life. That interference had a basis in domestic law and, since the first applicant’s argument that the domestic legislation had been overruled by European legislation had been dealt with in detail by the Administrative Court, it was in accordance with the law for the purposes of art 8(2). Moreover, the interference had served a legitimate aim, namely the prevention of crime and disorder. However, given the effect of the ban on the applicants’ private and family life, and the fact that the offences committed were relatively minor, the authorities had failed to strike a fair balance between the different interests involved. It followed that the interference with the applicants’ right to respect for their private and family life had not been proportionate to the legitimate aim pursued. There had, accordingly, been a violation of art 8 of the Convention.
Cases referred to in judgmentAmann v Switzerland (2000) 30 EHRR 843, [2000] ECHR 27798/95, ECt HR.
Bouchelkia v France (1998) 25 EHRR 686, [1997] ECHR 23078/93, ECt HR.
Boultif v Switzerland (2001) 33 EHRR 1179, [2001] ECHR 54273/00, [2001] 2 FLR 1228, ECt HR.
Dalia v France (2001) 33 EHRR 625, [1998] ECHR 26102/95, ECt HR.
El Boujaïdi v France (2000) 30 EHRR 223, [1997] ECHR 25613/94, ECt HR.
Ezzouhdi v France App no 47160/99 (13 February 2001, unreported), ECt HR.
Kruslin v France (1990) 12 EHRR 547, [1990] ECHR 11801/85, ECt HR.
Mehemi v France (2000) 30 EHRR 739, [1997] ECHR 25017/94, ECt HR.
ApplicationThe applicants, Mehmet Yildiz, Güler Yildiz and Yesim Yildiz, Turkish nationals, by a case originated in an application (no 37295/97) against the Republic of Austria lodged with the European Commission of Human Rights (the commission) under former art 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms 1950, alleged a violation of art 8 of the Convention, contending that the residence ban against the first applicant violated their right to respect for family life. The facts are set out in the judgment of the court.
31 October 2002.
THE EUROPEAN COURT OF HUMAN RIGHTS (THIRD SECTION)delivered the following judgment.
Procedure1. The case originated in an application (no 37295/97) against the Republic of Austria lodged with the European Commission of Human Rights (the commission) under former art 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969) (the Convention) by three Turkish nationals, Mr Mehmet Yildiz, Mrs Güler Yildiz and Ms Yesim Yildiz (the applicants), on 18 July 1997.
2. The applicants were represented by Mr WL Weh, a lawyer practising in Bregenz. The Austrian government (the government) were represented by their agent, Ambassador H Winkler, head of the international law department at the Federal Ministry of Foreign Affairs. The Turkish government, having been informed of their right to intervene (art 36(1) of the Convention and r 61(2) of the Rules of Court), submitted observations.
3. The applicants alleged, in particular, that the residence ban against the first applicant violates their right to respect for their 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 chamber that would consider the case (art 27(1) of the Convention) was constituted as provided in r 26(1).
6. By a decision of 22 May 2001 the court declared the application partly admissible.
7. On 1 November 2001 the court changed the composition of its sections (r 25(1)). This case was assigned to the newly composed Third Section.
8. The applicants and the government each filed...
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