CASE OF MASLOV v. AUSTRIA
Violation of Art. 8;Non-pecuniary damage - award
Alvina Gyulumyan;András Sajó;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Ledi Bianku;Loukis Loucaides;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Päivi Hirvelä;Peer Lorenzen;Riza Türmen;Snejana Botoucharova;Sverre Erik Jebens
10. The applicant was born in October 1984 and currently lives in Bulgaria. 11. 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, who were lawfully employed, acquired Austrian nationality. The applicant attended school in Austria. 12. 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. 13. On 8 March 1999 the applicant was granted an unlimited settlement permit (Niederlassungsbewilligung). 14. 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), offences 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. 15. 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. 16. 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 further 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. 17. 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. 18. 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 Aliens Act 1997, pursuant to which an exclusion order could not be issued against an alien who had been lawfully residing in Austria from an early age. 19. By a decision of 19 July 2001, the Vienna Public Security Authority (Sicherheitsdirektion) dismissed the appeal. It confirmed the Federal Police Authority’s finding. 20. 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. 21. 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. 22. By a decision of 19 September 2001, the Constitutional Court suspended the effects of the exclusion order pending its decision. 23. 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. 24. On 25 November 2002 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success. 25. In December 2002 a number of unsuccessful attempts were made to serve an order on the applicant to leave Austria. 26. On 18 August 2003 the Vienna Federal Police Authority issued a fresh order requiring the applicant to leave Austria. 27. 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. 28. 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. 29. 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 above). 30. At the material time the Aliens Act 1997 (Fremdengesetz) was in force. Sections 36 to 38, in so far as relevant, read as follows: “(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.” “(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.” “(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 there for many years.” 31. 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; and judgment of 21 September 2000, no. 2000/18/0135). 32. Article 21 § 2 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) provides: “Minors are persons who have not yet reached the age of 18 years. ...” This version of Article 21 of the Civil Code entered into force on 1 July 2001. Before that date the age of majority was 19 years. 33. 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. 34. The first one is Committee of Ministers Recommendation Rec(2000)15 concerning the security of residence of long-term migrants, adopted on 13 September 2000, 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; and – after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years’ 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 18. 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.” 35. The second one is Committee of Ministers Recommendation Rec(2002)4 on the legal status of persons admitted for family reunification, adopted on 26 March 2002. It 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 well-being of children.” 36. The United Nations Convention on the Rights of the Child of 20 November 1989, to which Austria is a State Party, provides: “For the purposes of the present Convention, a child means every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier.” “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.” “States Parties recognise the right of every child alleged as, accused of, or recognised 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.” 37. 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. 38. 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: “... 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 [Convention on the Rights of the Child] ... 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”. 39. Given the membership of Austria to the European Union (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 nationals of another member State and third-country nationals. 40. The first one is Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents. It provides: “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. ...” 41. The second one is Council 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: “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. ...” “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 ten 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.” 42. 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. 43. In its Georgios Orfanopoulos and Others and Raffaele Oliveri v. Land Baden-Württemberg judgment of 29 April 2004 (Joined Cases C–482/01 and C493/01, 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.” 44. In its Commission of the European Communities v. Spain judgment of 31 January 2006 (Case C-503/03, operative part, point 1) the CJEU stated: “... by refusing entry into the territory of the States Parties 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 64/221 of 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.”