EHRM, 23-06-2008, nr. 1638/03

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.

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.

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.

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).

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.

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 well-being 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).

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 sufficiently taken into account by the Austrian authorities.

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).

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).

The applicant came to Austria in 1990, at the age of six, and spent the rest of his childhood and youth there. He was lawfully resident in Austria with his parents and siblings and was granted a permanent settlement permit in March 1999.

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.

In the Government's opinion, the Chamber should not have had regard to facts which had occurred after the final domestic decision (see paragraphs 58–59 above). They argued that the Administrative Court had given its decision before the applicant's release. In any case, both the Administrative Court and the Constitutional Court had to take their decision on the basis of the facts established by the last-instance administrative authority. In the present case that had been the decision of the Vienna Public Security Authority of 19 July 2001.

The Court notes that the Boultif judgment (cited above, § 51) established the ‘time elapsed since the commission of the offences and the applicant's conduct during that period’ as a criterion to be taken into account. In that case the Court had regard to the entire period between the commission of the offences in 1994 and the applicant's departure from Switzerland in 2000, considering that the applicant's exemplary conduct in prison and his employment thereafter mitigated the fears that he constituted a danger to public order and security. However, on the facts of the case it is not clear how much time exactly elapsed between the final domestic decision given by the Swiss Federal Court in November 1999 and the applicant's departure ‘on an unspecified date in 2000’ (ibid., §§ 19 and 22). In a subsequent case, in which seven months elapsed between the Austrian Administrative Court's decision in December 1996 and the applicant's departure in July 1997, the Court had regard to the applicant's good conduct between the last conviction in April 1994 and the termination of the proceedings in December 1996 (see Yildiz, cited above, §§ 24–26 and 45).

Under the approach taken in the Boultif judgment (cited above, §51), the fact that a significant period of good conduct elapses between the commission of the offences and the deportation of the person concerned necessarily has a certain impact on the assessment of the risk which that person poses to society.

In this connection it is to be borne in mind that according to the Court's established case-law under Article 3, where an expulsion has taken place before the Court gives judgment, the existence of the risk the applicant faced in the country to which he was expelled is to be assessed with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion. In cases in which the applicant has not yet been deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Saadi v. Italy [GC], no. 37201/06, § 133, 28 February 2008). Thus, in these cases the Court does not limit itself to assessing the situation at the time when the final domestic decision ordering the expulsion was given.

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 an international 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.

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).

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.

The Court will therefore have regard to the applicant's conduct between the commission of the last offence, in January 2000, and his actual deportation in December 2003. Of this period of almost three years and eleven months the applicant spent two years and three and a half months in prison, namely from 11 February 2000 to 24 May 2002. Following his release from prison and up until 27 November 2003, when he was taken into detention with a view to his expulsion, he spent one and a half years at liberty without reoffending. However, unlike in the Boultif case (cited above, § 51), little is known about the applicant's conduct in prison — except that he did not benefit from early release — and it is even less clear to what extent his living circumstances had stabilised after his release. Consequently, unlike the Chamber, the Court considers that ‘the time elapsed since the commission of the offences and the applicant's conduct during this period’ carries less weight as compared to the other criteria, in particular the fact that the applicant committed mostly non-violent offences when a minor.

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.

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.

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).

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.

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’.

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