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EGMR, Urteil vom 22.04.2004 - 42703/98 - M5794

Zur Verletzung von Art. 8 EMRK durch die Ausweisung eines ausländischen Jugendlichen wegen Straftaten, wenn dessen Familie im Gastland lebt.(Leitsatz der Redaktion)

Schlagwörter: Österreich (A), Jugoslawen, Kosovo, Privatleben, Integration, Straftäter, Raub, Jugendstrafe, Freiheitsstrafe, Ausweisung, Sperrwirkung, Unbefristete Sperrwirkung, Integration, Aufenthaltsdauer, Schutz von Ehe und Familie, Entschädigung
Normen: EMRK Art. 8; EMRK Art. 41

Accordingly, the court s task consists in ascertaining whether the Austrian authorities, by imposing a residence prohibition of unlimited duration on the applicant, structure a fair balance between the relevant interests, namely the applicant s right to respect für his private and family life, on the one hand, and the prevention of disorder and crime, on the other.

The Court notes that the applicant, a single young adult at the time of his expulsion, is not a second generation immigrant as, despite his birth in Austria, he did not permanently live there until the age of ten. Given the young age at which he arrived, the Court will nevertheless assess the necessity of the interference by applying the same criteria it usually applies in cases of second generation immigrants who have not yet founded a family of their own in the host country. These criteria, sofar as material, are the nature and gravity of the offence committed by the applicant and the length of his stay in the host country. In addition the applicant s family ties and the social fies he established in the host country by receiving his schooling and by spending the decisive years of his youth there are to be taken into account (see Benhebba v. France, no. 53441/99, §§ 32-33, 15 June 2003).

The Court considers the present case needs to be distinguished from a number of cases concerning the expulsion of second generation immigrants, in which the Court found no violation of Article 8 of the Convention (see Boujlifa v. France, judgment of 21 October 1997, Reports 1997- VI, p. 2264, § 42; Bouchelkia v. France. judgment of 29 January 1997, Reports 1997-I, p. 65, §§ 50-51; El Bojaidi v. France, judgment of 26 September 1997, Reports 1997-I, p. 63, §§ 40-41; and Dalia, cited above, p. 92, §§ 53-54). These cases all involved second generation immigrants who arrived in the host country at an early age and were convicted of serious offences with lengthy terms or unconditional imprisonment. Furthermore, they concerned drug offences, the kind of offence, for which the Court has shown understanding of domestic authorities firmness with regard to those who actively contribute to its spread (see C. v. Belgium, 7 August 1996, Reports 1996-III, p. 924, § 35; Dalia, cited above, p. 92, § 54; Baghli v. France, , no.34374/97, 30 November 1999, § 48 in fine, ECHR 1999- VIII; and Yilmaz v. Germany, no. 52853/99, § 46, 17 April 2003). In the present case, despite the shorter duration of the applicant s stay in Austria the Court attaches considerable weight to the fact that although the applicant was convicted of aggravated robbery, he was only sentenced to a six-month unconditional term of imprisonment, whereas twenty-four months were suspended on probation.

In the applicant s case the Austrian authorities balanced his fight to respect für private and family life against the public interest and gave priority to the latter interest in order to prevent disorder and crime. Without disregarding the serious nature of the offences, the Court notes, however, that the applicant committed them as a juvenile, that he had no previous criminal record and that the major part of the relatively high sentence was suspended for probation by the Juvenile Court. Therefore the Court is not convinced by the Governments argument and the administrative authorities assessment that the applicant constituted such a serious danger to public order which necessitated the imposition of the measure concerned (see mutatis mutandis, Ezzouhdi v. France, no. 47160/99, § 34, 13 February 2001).

Given the applicants birth in Austria, where he later also completed his secondary education and vocational training while living with his family, and also taking into account that his family had already lawfully stayed in Austria für a long time and that the applicant himself had an unlimited residence permit when he committed the offence, and considering that, after the death of his grandparents in Serbia and Montenegro, he no longer has any relatives there, the Court finds that his family and social ties with Austria were much stronger than with Serbia and Montenegro.

The Court therefore considers that, in the circumstances of the present case, the imposition of a residence prohibition of unlimited duration was an overly rigorous measure. A less intrusive measure, such as a residence prohibition of a limited duration would have sufficed. The Court thus concludes that the Austrian authorities, by imposing a residence prohibtion of unlimited duration against the applicant, have not struck a fair balance between the interests involved and that the means employed were disproportionate to the aim pursued in the circumstances of the case (see mutatis mutandis, Ezzouhdi cited above, § 35; and Yilmaz, cited above, §§ 48-49).

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

Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

The applicant sought EUR 10,000 as compensation for non-pecuniary damage sustained on account of the imposition of the residence prohibition. He also requested reimbursement of costs and expenses incurred in the domestic proceedings and the Convention proceedings in the amount of EUR 9,649.93.

The Government contended that the applicants claim in respect of non-pecuniary damage was not supported by any evidence. The Government further cast doubts on whether the costs claim, in particular in respect of unspecified telephone calls, bad been necessary in order to prevent the violation found.

The Court considers the question of the application of Article 41 is not ready for decision. Accordingly, it shall be reserved and the subsequent procedure fixed having regard to any agreement which might be reached between the Government and the applicants (Rule 75 § 1 of the Rules of Court).