European Court - expulsion order breaches Article 8
In Maslov v Austria (Application no. 1638/03) the European Court of Human Rights, sitting as a Grand Chamber at the request of the Austrian government, decided the case of a young Bulgarian man who had been made the subject of an order excluding him from Austria for ten years. Mr Maslov had won his case at first instance before the European Court sitting as a Chamber. In its judgment released on Monday of this week (23 June 2008) the Grand Chamber found by a majority of sixteen judges to one that the expulsion order was a breach of his rights protected by Article 8 of the European Convention on Human Rights.
Mr Maslov had lived with his parents in Austria since he was six years old. His and his parents’ residence in Austria was completely lawful, and his parents have since acquired Austrian nationality. In 1999, when he was 14 years old, Mr Maslov was convicted on twenty-two counts of aggravated gang burglary and attempted aggravated gang burglary. In 2000 he was convicted on eighteen counts of aggravated burglary and attempted aggravated burglary. For these offences in 1999 he was sentenced to eighteen months’ imprisonment and in 2000 to fifteen months’ imprisonment.
In 2001, when Mr Maslov was 17 years old, the Vienna Federal Police Authority served the ten year expulsion order upon him. He appealed against this order relying on his rights protected by Article 8. The Vienna Public Security Authority dismissed his appeal and his attempts to have that decision reviewed by the Austrian Administrative Court, and later the Constitutional Court also failed. He was deported to Sofia in December of 2003.
Mr Maslov’s application to the European Court of Human Rights against the Austrian government was issued in 2002 and declared partly admissible in 2005. He won his case before the Court (sitting as a Chamber) on 22 March 2007.
The Chamber judgment in Mr Maslov’s favour followed the European Court’s judgment in Üner v the Netherlands [2006] 3 FCR 340. In that case the following criteria had been identified as relevant to the question of whether foreigners convicted of criminal offences should or should not be deported:
– the nature and gravity of the offences committed by the applicant;
– the length of his stay in the host country;
– the period which elapsed between the commission of the offences and the impugned measure and the applicant's conduct during that period;
– the solidity of social, cultural and family ties with the host country and the country of destination.
The Chamber noted that Mr Maslov had lived in Austria since he had come there from Bulgaria with his parents at the age of six, that he spoke German, that he had been educated only in Austria and that with one exception the offences for which he had been convicted did not involve violence or dealing in drugs. It also took account of Mr Mazlov’s good conduct during the eighteen months between his release from prison and his deportation to Bulgaria.
In its submissions to the Grand Chamber the Austrian government complained that the Chamber had not properly applied the principles in Üner and those in Boultif v Switzerland [2001] 33 EHRR 50. Mr Maslov had been convicted of serious offences. Also he didn’t have strong links with his parents, who had not managed to control him. Neither, unlike the applicants in Boultif and in Üner, did the applicant have any family of his own.
Holding that there had been a violation of Mr Maslov’s rights protected by Article 8 the Grand Chamber conducted a step by step examination of the facts against the requirements of Article 8. It found that:
• The exclusion order interfered with Mr Mazlov’s rights to respect for both his family and his private life. The Court had found in a number of cases (Bouchelkia v France [1997] 25 EHRR; El Boujaïdi v France (26-9-1997 Reports of Judgments and Decisions 1997-VI); Ezzouhdi v France) that family life existed between young adults who did not yet have a family of their own and their parents. In any event the right to respect for his private life necessarily extended to Mr Maslov’s right, as a “settled migrant” to develop relationships with other people. For this reason his expulsion constituted and interference with his right to respect for his private life.
• The expulsion was legal under Austrian law – so the interference was “in accordance with the law”.
• Similarly the interference served a legitimate aim – i.e. the prevention of disorder or crime
• However, applying the principles set out in Üner, which itself followed Boultif, it could not be said that Mr Maslov’s expulsion was necessary in a democratic society and therefore proportionate to the legitimate aim of preventing disorder or crime. The seriousness of the offences had to be considered in the light of the fact that Mr Maslov had been a minor when he committed them (Moustaquim v Belgium (1991) 13 EHRR 802. Furthermore the Court had already found, in Üner, 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”
In such cases very serious reasons were required to justify expulsion.
• Furthermore Article 40 of the Convention on the Rights of the Child required “reintegration” to be an aim to be pursued by the juvenile justice system. Expelling Mr Maslov from Austria and severing his links with his family didn’t achieve this aim.
For these reasons the Grand Chamber upheld the Chamber’s judgment to the effect that the expulsion order was disproportionate to the legitimate aim pursued; “the prevention of disorder or crime” . Since it was disproportionate the expulsion order was not necessary in a democratic society. Article 8 was breached.
This judgment sets out more clearly than is usually the case the way in which the European Court approaches the question of the proportionality of decisions which violate individuals’ rights protected by Article 8. It also demonstrates that such rights to respect for private life (as opposed to family life) can, in circumstances such as the long term residence of a person in a Member State, only be violated for very serious reasons. Criminal offences, particularly when they have been committed by the person the Member State wishes to expel was a minor, will not necessarily mean that his or her expulsion is a proportionate measure to take in order to achieve “the prevention of disorder or crime”
