CASE OF KÜLEKCI v. AUSTRIA
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1990 and lives in Turkey. 6. The applicant’s parents, who are of Turkish origin, were living in Austria when the applicant was born. They divorced in 1992 and his father was awarded sole custody. In the same year, his grandparents, who had been looking after him while his father had been working, moved to Turkey and took the applicant and his sister with them. The applicant’s mother also returned to Turkey, but founded a new family and did not keep in touch with him. The applicant lived in Turkey from 1992 until 1998, attending school there for three years. In 1998, when he was eight years old, he and his sister moved back to Austria to live with their father again. For that purpose, the applicant was granted a residence permit by the Austrian authorities. 7. On 30 December 2004, at the age of 14, the applicant, together with four of his friends, assaulted a man. He jumped on the victim from behind, while his friends beat and kicked the man, causing him serious injuries. They also stole money and cigarettes from their victim. On 20 January 2005 the applicant attempted to shoplift. On 29 August 2005 he drove a moped without the owner’s consent. 8. On 8 November 2005 the applicant and his friends stole an item from a man. Between 15 and 30 January 2006 the applicant and a group of his friends partly attempted and partly succeeded in stealing the handbags of nine elderly women through threats or the use of force. The applicant was 15 years old at that time. He had ripped the handbags from some of the victims; grabbed one of the women from behind, holding her mouth and dragging her to the ground; hit another one on the head and pushed his knee into her back so that she would fall down; and had also beaten some of them. Two of the women were seriously injured as a result. 9. On 13 March 2006 the Vienna Regional Criminal Court (Straflandesgericht – hereinafter, “the Criminal Court”) convicted the applicant of aggravated robbery, attempted theft and unauthorised use of a motor vehicle (see paragraph 7 above). He was sentenced to one year’s imprisonment, which was suspended for a probationary period of three years. The Criminal Court considered as mitigating factors that the applicant had no previous criminal record, that he had confessed to his crimes and that he had shown willingness to afford redress to the victim. Aggravating factors were that he had committed several offences, specifically a crime and two misdemeanours. In its reasoning of the judgment, the Criminal Court noted that the applicant had been notorious for excessive acts of violence and had had to change schools several times already. It observed that the applicant had virtually no age-appropriate capacity of reflection, and attested that he had an enormous tendency to act aggressively, which he used as his strategy for problem-solving. 10. On 31 May 2006 the Criminal Court convicted the applicant of aggravated robbery as a member of a criminal organisation and theft (see paragraph 8 above). He was sentenced to two and a half years’ imprisonment. The probationary period of his previous criminal conviction of 13 March 2006 was prolonged to five years in total. The Criminal Court considered the applicant’s confession to be a mitigating factor, but the repeated commission of offences as an aggravating factor. It argued in its reasoning that the applicant had taken a leading role in the robberies. The applicant and his friends had deliberately targeted elderly women because they had expected they would not resist. Moreover, the Criminal Court found that the applicant had been one of the main perpetrators, which is why there was no leeway to pronounce a more lenient sentence than two and a half years’ imprisonment. 11. On 7 August 2006 the Vienna Federal Police Authority (Bundespolizeidirektion) imposed a ten-year exclusion order (Aufenthaltsverbot) on the applicant pursuant to section 60(1) and (2)(1), section 63(1) and (2), and section 66 of the Aliens Police Act (Fremdenpolizeigesetz). It found that even though most of his family lived in Austria, the applicant’s expulsion was justified because of the severity of his offences in order to protect public order and security. 12. The applicant appealed. He argued that he had committed the criminal offences as a juvenile delinquent who had had the wrong friends. The authorities had not properly taken into account his interests, given that his father, paternal grandparents, siblings, half-brothers and half-sisters all lived in Austria. Because of his young age he would not be able to live in Turkey by himself. 13. On 16 March 2007 the Vienna Security Authority (Sicherheitsdirektion) partly granted his appeal and limited the exclusion order to eight years. 14. On 30 April 2007 the applicant was released from prison because of his good conduct after having served half of his sentence. 15. On 11 December 2007 the Administrative Court set aside the Vienna Security Authority’s decision of 16 March 2007 for lack of jurisdiction and held that the Independent Administrative Panel (Unabhängiger Verwaltungssenat – hereinafter, “the IAP”) was the competent authority to examine the appeal. 16. On 21 July 2008, following an oral hearing, the Vienna IAP partly granted and partly dismissed the applicant’s appeal. It confirmed the legality of the exclusion order, but limited it to five years. It considered that the robberies in particular had been serious offences which demonstrated the applicant’s severe disrespect for the well-being and property of others. The victims had been mostly elderly, fragile women, who had been physically weaker than him and his friends. Two of the women had been severely injured. The applicant had been one of the main perpetrators. His tendency towards violence and aggression was remarkable and appeared to have even increased between the first and the second conviction. The IAP further took into consideration that the applicant had only been 14 and 15 years old at the time of the offences, and therefore had still been in the process of reaching maturity. This was however put into perspective by the fact that he had not offended only once, but multiple times, and in a particularly brutal manner. 17. The IAP proceeded to examine whether it could be assumed that the applicant still posed a threat to public order and safety. His probation officer (Bewährungshelfer) testified that the applicant had developed a sense of justice after his conviction and that cooperation with him had worked well. The applicant had worked as an apprentice during his time in prison. After his release, he had participated in several training programmes and was looking for a job. The IAP noted furthermore that the applicant had not reoffended in over a year since his release from prison. It came to the conclusion, however, that the relatively short time since his release was not enough to prove that he was not a danger to society anymore. 18. The IAP then assessed whether the exclusion order violated the applicant’s rights under Article 8 of the Convention. It held at the outset that an expulsion of “second-generation migrants” such as the applicant was subject to stricter criteria than an expulsion of other foreigners. Referring to the Court’s judgments in the cases Boultif v. Switzerland (no. 54273/00, ECHR 2001IX), Üner v. the Netherlands ([GC] no. 46410/99, ECHR 2006XII) and Maslov v. Austria ([GC] no. 1638/03, ECHR 2008), it found that – in contrast to Maslov – the applicant had repeatedly committed serious crimes of a violent nature. Because of his family and his social integration in Austria, the exclusion order constituted an interference with his rights under Article 8 of the Convention. However, he had almost reached the age of majority at the time the exclusion order had been issued. Economic integration could not be observed as he was unemployed at the time. He spoke Turkish and had last visited Turkey in 2001. His mother still lived in Turkey; he had no contact with her at the time but could get in touch with her. The serious nature of the offences and the resulting public interest in his expulsion therefore outweighed the applicant’s interest in remaining in the country. However, because of his young age, the IAP concluded that a five-year exclusion order would be sufficient. 19. On 30 September and 16 December 2008 respectively, the Constitutional Court and the Administrative Court declined to hear prior appeals by the applicant against the IAP’s decision. 20. On 8 September and 17 November 2009 and on 4 January 2010 the applicant was informed of the possibility to leave the country voluntarily. As he did not leave, he was expelled to Turkey on 10 February 2010. He was nineteen years old at that time. 21. The five-year exclusion order against the applicant, which had been pronounced in the IAP’s decision of 21 July 2008, expired in July 2013.