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EGMR, Urteil vom 23.06.2008 - 1638/03 (Maslov II) - M13687

Bei der Ausweisung von Ausländern wegen Straftaten, die sie als Minderjährige begangen haben, ist das Kindeswohl zu berücksichtigen; die Ausweisung wegen Straftaten der Jugendkriminalität, die überwiegend nicht der Gewaltkriminalität zuzuordnen sind, verstößt in der Regel gegen Art. 8 EMRK; Straftaten aus dem Bereich der Beschaffungskriminalität sind nicht in gleicher Weise zu beurteilen wie der Handel mit Drogen; der Europäische Gerichtshof berücksichtigt auch Tatsachen, die nach der letzten Entscheidung der nationalen Behörden oder Gerichte eingetreten sind.

(Leitsätze der Redaktion)

Schlagwörter: Österreich (A), Ausweisung, EGMR, Straftat, Kinder, Minderjährige, Schutz von Ehe und Familie, Privatleben, Integration, Aufenthaltsdauer, Drogendelikte, Kindeswohl, UN-Kinderrechtskonvention, Beurteilungszeitpunkt, Entscheidungszeitpunkt, Wirkungen der Ausweisung, Sperrwirkung, Maslov II,
Normen: EMRK Art. 8;

1. Whether there was an interference with the applicant's right to respect for his private and family life

61. The Court considers that the imposition and enforcement of the exclusion order against the applicant constituted an interference with his right to respect for his "private and family life". It reiterates that the question whether the applicant had a family life within the meaning of Article 8 must be determined in the light of the position when the exclusion order became final (see El Boujaïdi v. France, judgment of 26 September 1997, Reports of Judgments and Decisions 1997-VI, p. 1990, § 33; Ezzouhdi v. France, no. 47160/99, § 25, 13 February 2001; Yildiz v. Austria, no. 37295/97, § 34, 31 October 2002; Mokrani v. France, no. 52206/99, § 34, 15 July 2003; and Kaya, cited above, § 57).

62. The applicant was a minor when the exclusion order was imposed. He had reached the age of majority, namely 18 years, when the exclusion order became final in November 2002 following the Constitutional Court's decision, but he was still living with his parents. In any case, the Court has accepted in a number of cases concerning young adults who had not yet founded a family of their own that their relationship with their parents and other close family members also constituted "family life" (see Bouchelkia v. France, judgment of 29 January 1997, Reports 1997-I, p. 63, § 41; El Boujaïdi, cited above, § 33; and Ezzouhdi, cited above, § 26).

63. Furthermore, the Court observes that not all settled migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy "family life" there within the meaning of Article 8. However, as Article 8 also protects the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual's social identity, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of "private life" within the meaning of Article 8. Regardless of the existence or otherwise of a "family life", the expulsion of a settled migrant therefore constitutes an interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the "family life" rather than the "private life" aspect (see Üner, cited above, § 59).

64. Accordingly, the measures complained of interfered with both the applicant's "private life" and his "family life".

4. "Necessary in a democratic society"

(a) General principles

68. The main issue to be determined is whether the interference was "necessary in a democratic society".

69. In the Üner judgment, as well as in the Boultif judgment (§ 48) cited above, the Court has taken care to establish the criteria – which were so far implicit in its case-law – to be applied when assessing whether an expulsion measure is necessary in a democratic society and proportionate to the legitimate aim pursued.

70. The Court would stress that while the criteria which emerge from its case-law and are spelled out in the Boultif and Üner judgments are meant to facilitate the application of Article 8 in expulsion cases by domestic courts, the weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case. Moreover, it has to be borne in mind that where, as in the present case, the interference with the applicant's rights under Article 8 pursues, as a legitimate aim, the "prevention of disorder or crime" (see paragraph 67 above), the above criteria ultimately are designed to help evaluate the extent to which the applicant can be expected to cause disorder or to engage in criminal activities. 71. In a case like the present one, where the person to be expelled is a young adult who has not yet founded a family of his own, the relevant criteria are:

– the nature and seriousness of the offence committed by the applicant;

– the length of the applicant's stay in the country from which he or she is to be expelled;

– the time elapsed since the offence was committed and the applicant's conduct during that period;

– the solidity of social, cultural and family ties with the host country and with the country of destination.

72. The Court would also clarify that the age of the person concerned can play a role when applying some of the above criteria. For instance, when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult (see, for instance, Moustaquim v. Belgium, judgment of 18 February 1991, Series A no. 193, p. 19, § 44, and Radovanovic v. Austria, no. 42703/98, § 35, 22 April 2004).

73. In turn, when assessing the length of the applicant's stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it evidently makes a difference whether the person concerned had already come to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult. This tendency is also reflected in various Council of Europe instruments, in particular in Committee of Ministers Recommendations Rec (2001)15 and Rec (2002)4 (see paragraphs 3435 above).

74. Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Üner, cited above, § 55), including those who were born in the host country or moved there in their early childhood, the Court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Üner, § 58 in fine).

75. In short, the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile.

76. Finally, the Court reiterates that national authorities enjoy a certain margin of appreciation when assessing whether an interference with a right protected by Article 8 was necessary in a democratic society and proportionate to the legitimate aim pursued (see Slivenko v. Latvia [GC], no. 48321/99, § 113, ECHR 2003-X, and Berrehab v. the Netherlands, judgment of 21 June 1988, Series A no. 138, p. 15, § 28). However, the Court has consistently held that its task consists in ascertaining whether the impugned measures struck a fair balance between the relevant interests, namely the individual's rights protected by the Convention on the one hand and the community's interests on the other (see, among many other authorities, Boultif, cited above, § 47). Thus, the State's margin of appreciation goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court (see, mutatis mutandis, Société Colas Est and Others v. France, no. 37971/97, § 47, ECHR 2002-III). The Court is therefore empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8.

(b) Application of the above principles in the instant case

(i) Nature and seriousness of the offences committed by the applicant

77. The Court notes that the offences at issue were committed over a period of a year and three months, namely between November 1998 and January 2000 (paragraphs 14-15 above), when the applicant was between 14 and 15 years old.

78. The applicant's first conviction of September 1999 related to twenty-two counts of aggravated gang burglary and attempted aggravated gang burglary; forming a gang; extortion; assault; and unauthorised use of a vehicle. He was sentenced to eighteen months' imprisonment, of which thirteen months were suspended on probation. In addition, he was ordered to undergo drug therapy.

79. The second conviction – of May 2000 – related to eighteen counts of aggravated burglary and attempted aggravated burglary. The applicant was sentenced to fifteen months' imprisonment. As a consequence of his failure to undergo drug therapy, the judgment revoked the suspension of the first prison term.

80. The Court agrees with the Chamber that the offences committed by the applicant were of a certain gravity and that severe penalties were imposed on him amounting to a total of two years and nine months' unconditional imprisonment. The Government argued that the offences should be considered to be of a gravity similar to drugs offences, as the applicant had committed them as a drug addict in order to finance his drug consumption. The Court disagrees with this view. It is true that in the sphere of drug dealing the Court has shown understanding of the domestic authorities' firmness as regards those actively involved in the spread of this scourge (see, for instance, Dalia v. France, judgment of 19 February 1998, Reports 1998-I, p. 92, § 54, and Baghli v. France, no. 34374/97, § 48, ECHR 1999-VIII). However, it has not taken the same approach as regards those convicted of drug consumption (see Ezzouhdi, cited above, § 34).

81. In the Court's view, the decisive feature of the present case is the young age at which the applicant committed the offences and, with one exception, their non-violent nature. This also clearly distinguishes the present case from Boultif and Üner (both cited above) in which violent offences, in the first case robbery and in the second case manslaughter and assault committed by an adult, were the basis for imposing exclusion orders. Looking at the applicant's conduct underlying the convictions, the Court notes that the majority of the offences concerned breaking into vending machines, cars, shops or restaurants and stealing cash and goods. The one violent offence consisted in pushing, kicking and bruising another juvenile. Without underestimating the seriousness of and the damage caused by such acts, the Court considers that they can still be regarded as acts of juvenile delinquency.

82. The Court considers that where offences committed by a minor underlie an exclusion order regard must be had to the best interests of the child. The Court's case-law under Article 8 has given consideration to the obligation to have regard to the best interests of the child in various contexts (for instance in the field of child care; see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000-VIII), including the expulsion of foreigners (see Üner, cited above, § 58). In Üner the Court had to consider the position of children as family members of the person to be expelled. It underlined that the best interests and wellbeing of the children, in particular the seriousness of the difficulties which any children of the applicant were likely to encounter in the country to which the applicant was to be expelled, was a criterion to be taken into account when assessing whether an expulsion measure was necessary in a democratic society. The Court considers that the obligation to have regard to the best interests of the child also applies if the person to be expelled is himself or herself a minor, or if – as in the present case – the reason for the expulsion lies in offences committed when a minor. In this connection the Court observes that European Union law also provides for particular protection of minors against expulsion (see paragraph 41 above, Article 28 § 3(b) of Directive 2004/38/EC). Moreover, the obligation to have regard to the best interests of the child is enshrined in Article 3 of the United Nations Convention on the Rights of the Child (see paragraph 36 above).

83. The Court considers that, where expulsion measures against a juvenile offender are concerned, the obligation to take the best interests of the child into account includes an obligation to facilitate his or her reintegration. In this connection the Court notes that Article 40 of the Convention on the Rights of the Child makes reintegration an aim to be pursued by the juvenile justice system (see paragraphs 36-38 above). In the Court's view this aim will not be achieved by severing family or social ties through expulsion, which must remain a means of last resort in the case of a juvenile offender. It finds that these considerations were not sufficientlytaken into account by the Austrian authorities.

84. In sum, the Court sees little room for justifying an expulsion of a settled migrant on account of mostly non-violent offences committed when a minor (see Moustaquim, cited above, § 44, concerning an applicant who had been convicted of offences committed as a juvenile, namely numerous counts of aggravated theft, one count each of handling stolen goods and destruction of a vehicle, two counts of assault and one count of threatening behaviour, and Jakupovic v. Austria, no. 36757/97, § 27, 6 February 2003, in which the exclusion order was based on two convictions for burglary committed when a minor and where, in addition, the applicant was still a minor when he was expelled).

85. Conversely, the Court has made it clear that very serious violent offences can justify expulsion even if they were committed by a minor (see Bouchelkia, cited above, p. 65, § 51, where the Court found no violation of Article 8 as regards a deportation order made on the basis of the applicant's conviction of aggravated rape committed at the age of 17; in the decisions Hizir Kilic v. Denmark, no. 20277/05, and Ferhat Kilic v. Denmark, no. 20730/05 both of 22 January 2007, the Court declared inadmissible the applicants' complaints about exclusion orders imposed following their convictions for attempted robbery, aggravated assault and manslaughter committed at the age of 16 and 17 respectively).

(iii) Time elapsed since the commission of the offences and the applicant§#39;s conduct during that period

87. As noted above, the applicant committed no further offences after January 2000. When assessing his conduct since the commission of the offences, the Chamber had regard to the period up until his expulsion in December 2003. It attached weight to the period of good conduct after his release from prison in May 2002, noting that in the one and a half years prior to his expulsion he did not commit any further offences.

92. The Court is not convinced by the Government's argument, drawn from Article 35 § 1 of the Convention, to the effect that developments which occurred after the final domestic decision should not be taken into account. It is true that the requirement to exhaust domestic remedies is designed to ensure that States are only answerable for their acts before aninternational body after they have had an opportunity to put matters right through their own legal system (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 65). However, such an issue will only arise in the event that a significant lapse of time occurs between the final decision imposing the exclusion order and the actual deportation.

93. In this connection the Court would point out that its task is to assess the compatibility with the Convention of the applicant's actual expulsion, not that of the final expulsion order. Mutatis mutandis, this would also appear to be the approach followed by the European Court of Justice which stated in its Orfanopoulos and Oliveri judgment that 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 (see paragraph 43 above). Consequently, in such cases it is for the State to organise its system in such a way as to be able to take account of new developments. This is not in contradiction with an assessment of the existence of "family life" at the time when the exclusion order becomes final, in the absence of any indication that the applicant's "family life" would have ceased to exist after that date (see paragraph 61 above). Even if it had done so, the applicant could still claim protection of his right to respect for his "private life" within the meaning of Article 8 (see paragraph 63 above).

94. The Government indicated in this respect that proceedings allowing for a review of whether the conditions for an exclusion order still pertained could be instituted either at the applicant's request or at the initiative of the authorities acting of their own motion. It follows that in the present case it was open to the domestic authorities to make a new assessment.

(iv) Solidity of social, cultural and family ties with host country and country of origin

96. The Court observes that the applicant spent the formative years of his childhood and youth in Austria. He speaks German and received his entire schooling in Austria where all his close family members live. He therefore has his principal social, cultural and family ties in Austria.

97. As to the applicant's ties with his country of origin, the Court notes that he has convincingly explained that he did not speak Bulgarian at the time of his expulsion as his family belonged to the Turkish minority in Bulgaria. It was not disputed that he was unable to read or write Cyrillic as he had never gone to school in Bulgaria. It has not been shown, nor even alleged, that he had any other close ties with his country of origin.

(v) Duration of the exclusion order

98. Lastly, when assessing the proportionality of the interference the Court has regard to the duration of an exclusion order. The Chamber, referring to the Court's case-law, has rightly pointed out that the duration of an exclusion measure is to be considered as one factor among others (see, as cases in which the unlimited duration of a residence prohibition was considered as a factor supporting the conclusion that it was disproportionate, Ezzouhdi, cited above, § 35; Yilmaz v. Germany, no. 52853/99, §§ 48-49, 17 April 2003; and Radovanovic, cited above, § 37; see, as cases in which the limited duration of a residence prohibition was considered as a factor in favour of its proportionality, Benhebba, cited above, § 37; Jankov v. Germany (dec.), no. 35112/92, 13 January 2000; and Üner, cited above, § 65).

99. The Grand Chamber agrees with the Chamber that the limited duration of the exclusion order is not decisive in the present case. Having regard to the applicant's young age, a ten-year exclusion order banned him from living in Austria for almost as much time as he had spent there and for a decisive period of his life.

(vi) Conclusion

100. Having regard to the foregoing considerations, in particular the – with one exception – non-violent nature of the offences committed when a minor and the State's duty to facilitate his reintegration into society, the length of the applicant's lawful residence in Austria, his family, social and linguistic ties with Austria and the lack of proven ties with his country of origin, the Court finds that the imposition of an exclusion order, even of a limited duration, was disproportionate to the legitimate aim pursued, "the prevention of disorder or crime". It was therefore not "necessary in a democratic society".

101. Consequently, there has been a violation of Article 8 of the Convention.