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. The Bulgarian Government did not make use of their right to intervene (Article 36 § 1 of the Convention).

The applicant alleged, in particular, that the residence prohibition against him violated his right to respect for his private and family life.

The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

By a decision of 2 June 2005 the Court declared the application partly admissible.

THE FACTS

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

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 late 1998 criminal proceedings were instituted against the applicant. He was, inter alia, suspected of having broken into cars, shops and vending machines, of having stolen empties from a stock ground, of having forced another boy to steal 1,000 Austrian schillings 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 extortion (Erpressung), of partially completed and partially attempted assault (Körperverletzung), and of the unauthorised use of a vehicle (unbefugter Gebrauch eines Fahrzeugs) committed between November 1988 and June 1999. 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 was revoked.

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 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 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 (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 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 22 December 2003 the applicant was deported to Sofia.
NOT_CONFIDENTIAL
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001-79889_a8_e1
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CODE
DIRECT
1638/03
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correct
001-79889_a8_e2
001-79889_a8_em2
ORG
NO_MASK
Republic of Austria
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DEM
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Bulgarian
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PERSON
DIRECT
Mr Juri Maslov
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20 December 2002
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PERSON
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Mr M. Deuretsbacher
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Vienna
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NO_MASK
Austrian Government
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PERSON
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F. Trauttmansdorff
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International Law Department
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NO_MASK
Federal Ministry of Foreign Affairs
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Bulgarian Government
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DATETIME
QUASI
2 June 2005
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1984
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LOC
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Bulgaria
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DATETIME
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November 1990
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LOC
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Austria
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LOC
NO_MASK
Austria
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Austrian
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NO_MASK
Austria
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1998
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QUANTITY
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1,000 Austrian schillings
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7 September 1999
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ORG
QUASI
Vienna Juvenile Court (Jugendgerichtshof)
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QUANTITY
NO_MASK
22 counts
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DATETIME
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November 1988
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QUASI
June 1999
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18 months
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NO_MASK
13
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11 February 2000
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June 1999
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January 2000
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11 February 2000
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Vienna Juvenile Court
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DATETIME
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25 May 2000
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Vienna Juvenile Court
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18 counts
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15 months
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7 September 1999
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Vienna Juvenile Court’s
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24 May 2002
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3 January 2001
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ORG
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Vienna Federal Police Authority (Bundespolizeidirektion)
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001-79889_a8_e38
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ten years
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Austria
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Austria
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Austria
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correct
001-79889_a8_e39
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age of six
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NO_MASK
Austria
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LOC
QUASI
Bulgaria
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NO_MASK
Austria
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19 July 2001
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ORG
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Vienna Public Security Authority (Sicherheitsdirektion)
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NO_MASK
Federal Police Authority’s
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17 August 2001
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ORG
NO_MASK
Administrative Court (Verwaltungsgerichtshof)
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ORG
NO_MASK
Constitutional Court (Verfassungsgerichthof)
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Austria
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age of six
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NO_MASK
Austria
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Bulgarian
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Bulgaria
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DATETIME
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18 September 2001
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NO_MASK
Administrative Court
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Austria
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age of six
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Austria
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25 November 2002
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NO_MASK
Constitutional Court
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18 August 2003
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Vienna Federal Police Authority
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001-79889_a8_em72
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Austria
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001-79889_a8_e52
001-79889_a8_em73
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14 October 2003
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Vienna Federal Police Authority
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27 November 2003
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22 December 2003
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001-79889_a8_e55
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LOC
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Sofia
Juri Maslov
AUT
CHAMBER
Task: Annotate the document to anonymise the following person: Juri Maslov