PROCEDURE

The case originated in an application (no. 1638/03) against the Republic of Austria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Juri Maslov (“the applicant”), on 20 December 2002.

The applicant was represented by Mr M. Deuretsbacher, a lawyer practising in Vienna. The Austrian Government (“the Government”) were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

Under Article 8 of the Convention, the applicant alleged, in particular, that the imposition of an exclusion order on him and his expulsion to Bulgaria violated his right to respect for private and family life.

The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 2 June 2005 it was declared partly admissible by a Chamber of that Section, composed of Christos Rozakis, Snejana Botoucharova, Anatoli Kovler, Elisabeth Steiner, Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens, judges, and of Søren Nielsen, Section Registrar. On 22 March 2007 a Chamber of that Section, composed of Christos Rozakis, Loukis Loucaides, Nina Vajić, Elisabeth Steiner, Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens, judges, and Søren Nielsen, Section Registrar, delivered a judgment in which it held, by four votes to three, that there had been a violation of Article 8 of the Convention and that the respondent Government should pay the applicant 5,759.96 euros in respect of costs and expenses.

On 24 September 2007, pursuant to a request by the respondent Government, the panel of the Grand Chamber decided to refer the case to the Grand Chamber in accordance with Article 43 of the Convention.

The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24.

The applicant and the Government each filed a memorial. The Bulgarian Government did not make use of their right to intervene (Article 36 § 1 of the Convention).

A hearing took place in public in the Human Rights Building, Strasbourg, on 6 February 2008 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mr F. Trauttmansdorff, Agent, Ms B. Ohms, Adviser, Mr C. Schmalzl, Adviser; (b) for the applicant Mr M. Deuretsbacher, Counsel. The Court heard addresses by Mr Deuretsbacher and Mr Trauttmansdorff, as well as their answers to questions put by a number of judges.

Subsequently, András Sajó, substitute judge, replaced Riza Türmen, who was unable to take part in the further consideration of the case (Rule 24 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in October 1984 and currently lives in Bulgaria.

In November 1990, at the age of six, the applicant lawfully entered Austria together with his parents and two siblings. Subsequently, he was legally resident in Austria. His parents, who were lawfully employed, acquired Austrian nationality. The applicant attended school in Austria.

In late 1998 criminal proceedings were instituted against the applicant. He was suspected of, inter alia, having broken into cars, shops and vending machines; having stolen empties from a stock ground; having forced another boy to steal 1,000 Austrian schillings from the latter’s mother; having pushed, kicked and bruised this boy; and of having used a motor vehicle without the owner’s authorisation.

On 8 March 1999 the applicant was granted an unlimited settlement permit (Niederlassungsbewilligung).

On 7 September 1999 the Vienna Juvenile Court (Jugendgerichtshof) convicted the applicant on twenty-two counts of aggravated gang burglary and attempted aggravated gang burglary (gewerbsmäßiger Bandendiebstahl), forming a gang (Bandenbildung), extortion (Erpressung), assault (Körperverletzung), and unauthorised use of a vehicle (unbefugter Gebrauch eines Fahrzeugs), offences committed between November 1998 and June 1999. He was sentenced to eighteen months’ imprisonment, thirteen of which were suspended on probation. The sentence was accompanied by an order to undergo 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 on eighteen counts of aggravated burglary and attempted aggravated burglary, and sentenced him to fifteen months’ imprisonment. When fixing the sentence the court noted the applicant’s confession as a mitigating circumstance, and the number of offences committed and 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 escaped their educational influence, had repeatedly been absent from home and had dropped out of school. It further noted that the applicant had failed to comply with the order to undergo drug therapy. Consequently, the suspension of the prison term imposed by the judgment of 7 September 1999 was revoked. Following the Vienna Juvenile Court’s judgment, the applicant served his prison term.

On 3 January 2001 the Vienna Federal Police Authority (Bundespolizeidirektion), relying on section 36(1) and 2(1) of the Aliens Act 1997 (Fremdengesetz), imposed a ten-year exclusion order on the applicant. Having regard to the applicant’s convictions, it found that it was contrary to the public interest to allow him to stay in Austria any longer. Considering the applicant’s relapse into crime after his first conviction, the public interest in the prevention of disorder and crime outweighed the applicant’s interest in staying in Austria.

The applicant, assisted by counsel, appealed. He submitted that the exclusion order 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 Aliens Act 1997, pursuant to which an exclusion order could not be issued against an alien who had been lawfully residing in Austria from an early age.

By a 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 lodged complaints both with the Administrative Court (Verwaltungsgerichtshof) and the Constitutional Court (Verfassungsgerichthof). He stressed that he had come to Austria at the age of six, had attended school in Austria and could not speak Bulgarian. He had no relatives or other social contacts in Bulgaria. He also stressed the fact that he was still a minor.

On 18 September 2001 the Administrative Court dismissed the complaint and found that the exclusion order was justified under Article 8 § 2 of the Convention. It observed that the applicant had come to Austria only at the age of six, whereas – according to its constant case-law – section 38(1)(4) of the Aliens Act 1997 prohibited an exclusion order only in respect of aliens who had been legally resident from the age of three or younger. Considering the gravity and number of offences committed by the applicant, the fact that the first conviction had rapidly been followed by a second one and the severity of the penalties imposed, it found that the exclusion order did not constitute a disproportionate interference with the applicant’s rights under Article 8, despite his lengthy residence and family ties in Austria.

By a decision of 19 September 2001, the Constitutional Court suspended the effects of the exclusion order pending its decision.

The applicant was released from prison on 24 May 2002 not having benefited from early release. According to the information given by counsel at the hearing, the applicant finished school during his prison term and helped in his father’s transport business after his release.

On 25 November 2002 the Constitutional Court declined to deal with the applicant’s complaint for lack of prospects of success.

In December 2002 a number of unsuccessful attempts were made to serve an order on the applicant to leave Austria.

On 18 August 2003 the Vienna Federal Police Authority issued a fresh order requiring the applicant to leave Austria.

On 14 October 2003 the order was served on the applicant at his parents’ address and subsequently the Vienna Federal Police Authority ordered his detention with a view to his expulsion. He was arrested on 27 November 2003.

On 22 December 2003 the applicant was deported to Sofia. According to information given by counsel at the hearing, the applicant did not commit any further offences in Bulgaria and has found employment there.

At the hearing, the Government informed the Court that the exclusion order will expire on 3 January 2011, that is ten years after its issue (see paragraph 17 above).