AS TO THE ADMISSIBILITY OF
Application no. 1638/03
by Juri MASLOV
The European Court of Human Rights (First Section), sitting on 2 June 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 20 December 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Juri Maslov, is a Bulgarian national who was born in 1984. He is currently residing in Bulgaria. He was represented before the Court by Mr M. Deuretsbacher, a lawyer practising in Vienna. The respondent Government were represented by Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was born on 10 October 1984. In November 1990 the applicant lawfully entered Austria together with his parents and two siblings. Subsequently, he was legally resident in Austria. His parents were lawfully employed and have meanwhile acquired Austrian nationality. The applicant attended school in Austria.
In autumn 1998 criminal proceedings were instituted against the applicant. He was, inter alia, suspected of having, between November 1998 and June 1999, broken into cars, shops and vending machines, of having stolen empties from a stock ground, of having forced another boy to steal ATS 1,000 from the latter's mother, of having beaten this boy and thereby having bruised him, and of having used a motor vehicle without the owner's authorisation.
On 7 September 1999 the Vienna Juvenile Court (Jugendgerichtshof) convicted the applicant of some 22 counts of partially completed and partially attempted aggravated gang burglary (gewerbsmäßiger Bandendiebstahl), of extorsion (Erpressung), of partially completed and partially attempted assault, (Körperverletzung) and of the unauthorised use of a vehicle (unbefugter Gebrauch eines Fahrzeugs). He was sentenced to 18 months' imprisonment, 13 of which were suspended on probation. Moreover, he was instructed to start drug therapy.
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.
On 25 May 2000 the Vienna Juvenile Court convicted the applicant of 18 counts of partially completed and partially attempted aggravated burglary and sentenced him to 15 months' imprisonment. When fixing the sentence the court noted the applicant's confession as a mitigating circumstance, the number of offences committed as well as 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 elapsed their educational influence, had repeatedly been absent from home, and had dropped out of school. It also noted that the applicant had failed to comply with the instruction to undergo drug withdrawal treatment. Consequently, the suspension of the prison term imposed by the judgment of 7 September 1999 had been revoked. That decision had become final on 23 May 2000.
Following the Vienna Juvenile Court's judgment, the applicant served his prison term until 24 May 2002. He did not benefit from early release.
Meanwhile, on 3 January 2001 the Vienna Federal Police Authority (Bundespolizeidirektion), relying on Section 36 § 1 of the 1997 Aliens Act (Fremdengesetz 1997), imposed a ten years' residence prohibition on the applicant. Having regard to the applicant's convictions, it found that his further stay in Austria was contrary to the public interest. Considering the applicant's relapse into crime after his first conviction, the public interest for the prevention of disorder and crime outweighed the applicant's interests in staying in Austria.
The applicant, assisted by counsel, appealed. He submitted that the residence prohibition 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 1997 Aliens Act, pursuant to which a residence prohibition may not be issued against an alien who has been lawfully residing in Austria from an early age.
By decision of 19 July 2001 the Vienna Public Security Authority (Sicherheitsdirektion) dismissed the appeal. It confirmed the Federal Police Authority's finding.
On 17 August 2001 the applicant filed complaints both with the Administrative Court and the Constitutional Court. He stressed that he had come to Austria at the age of six, he had attended school in Austria and was not able to speak Bulgarian. He had no relatives and other social contacts in Bulgaria. Moreover, he drew attention to the fact that he was still a minor.
On 18 September 2001 the Administrative Court dismissed the complaint and found that the residence prohibition was justified under Article 8 § 2 of the Convention. It considered that the applicant had come to Austria only at the age of six, whereas – according to its constant case-law – Section 38 § 1 (4) only excluded a residence prohibition for aliens who had been legally resident from the age of three at the latest. Considering the gravity and the number of offences committed by the applicant, the fact that the first conviction was rapidly followed by a second one and the severity of the penalties imposed, it found that the residence prohibition did not constitute a disproportionate interference with the applicant's rights under Article 8, despite his lengthy residence and family ties in Austria.
On 25 November 2002 the Constitutional Court declined to deal with the complaint for lack of prospects of success.
On 18 August 2003 the Vienna Federal Police Authority requested the applicant to leave Austria.
On 14 October 2003 the Vienna Federal Police Authority ordered the applicant's detention with a view to his expulsion. He was arrested on 27 November 2003. On 2 December 2003 he was questioned.
By decision of 5 December 2003 the Vienna Independent Administrative Panel dismissed the applicant's complaint against his detention with a view to his expulsion. It found that his detention was justified as he had failed to comply with the residence prohibition. Further, it dismissed the applicant's argument that his expulsion would amount to inhuman or degrading treatment.
On 22 December 2003 the applicant was deported to Sofia. According to his own submissions his mother accompanied him in order to assist him with the necessary practical arrangements upon his arrival.
1. The applicant complained that the residence prohibition imposed on him violated his right to respect for his private and family life within the meaning of Article 8 of the Convention.
2. Furthermore, he complained that the execution of the residence prohibition amounted to inhuman and degrading treatment contrary to Article 3 of the Convention. Initially he argued that he risked to be expelled while still being a minor. Further, he submitted that his expulsion to a country where he had no family or social ties was inhuman.
1. The applicant complained about the residence prohibition against him and about his subsequent expulsion. He relied on Article 8 of the Convention which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government contested the applicant's argument that the residence prohibition against him was not in accordance with section 38 § 1 (4) of the 1997 Aliens Act. They argued, in particular, that the Administrative Court applied its established case-law that the term “from an early age” in that provision meant aliens who had grown up in Austria as of the age of three.
As to the necessity of the interference, the Government asserted that the authorities duly balanced the interests at stake, when finding that the public interest in issuing the residence ban outweighed the applicant's interest in remaining in Austria. They had regard to the nature of the offences committed by the applicant, the severity of the penalties imposed and the rapid relapse into crime after his first conviction. Further, the Government observed that the applicant only raised the argument that he did not speak or read Bulgarian at a late stage of the domestic proceedings. In any case, they found that he must have some knowledge of Bulgarian, as he had spent the first six years of his life in his country of origin. While conceding that the applicant received his schooling in Austria, the Government noted that he had dropped out of school and had not shown any interest to pursue vocational training or to take up employment.
Finally, the Government emphasised that the authorities limited the residence ban to ten years. Moreover, the applicant's expulsion was only carried out once he had reached the age of majority.
The applicant alleged that the impugned residence prohibition was not in accordance with the law, as the Administrative Court's interpretation of Section 38 § 1 (4) of the 1997 Aliens Act distinguished arbitrarily between the group of second generation immigrants who came to Austria before the age of three, who may not be subject to a residence prohibition, and other second generation immigrants like him, who still came at pre-school age but may be subject to a residence prohibition although they are exactly in the same position.
In the applicant's contention, the residence prohibition against him was disproportionate. He pointed out in particular that he was a second generation immigrant, having lived in Austria from the age of six. He had received his entire schooling there and had developed all his social, cultural and linguistic ties there, while he had no links with Bulgaria, except his nationality and two brief periods of holidays he spent there. He had no relatives or friends there and did not speak or write Bulgarian. Moreover, the applicant criticised that the impugned decisions did not take account of various factors speaking in his favour: he had committed the offences at issue at the age of 14 and 15 that is during a difficult period of adolescence and had only played a subordinate role in their commission. Later, he had not committed any further offences.
The fact that the residence prohibition was limited to ten years made little difference, as the major damage was done by his sudden removal from his family background and social ties in Austria.
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicant complained that the execution of the residence prohibition amounted to inhuman or degrading treatment, contrary to Article 3 of the Convention which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Court recalls that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, among many other authorities, Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III).
The applicant initially argued that his expulsion might take place while he was still a minor. Further, he submitted that his expulsion to a country where he has no family, social or linguistic ties had to be considered as inhuman. The Court notes however that the applicant was already nineteen years old when he was expelled. He has not relied on any particular circumstances which would show that his expulsion, the conditions in which it was carried out or the situation in which he is being placed in Bulgaria reaches the threshold of severity required for Article 3.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares admissible the applicant's complaint that the residence prohibition imposed on him violated his right to respect for his private and family life, without prejudging the merits of the case;
Declares inadmissible the remainder of the application.
Søren Nielsen Christos
MASLOV v. AUSTRIA DECISION
MASLOV v. AUSTRIA DECISION