Resolution CM/ResDH(2009)117 [1]

Execution of the judgments of the European Court of Human Rights

Yildiz, Jakupovic, Radovanovic and Maslov against Austria

(Yildiz, Application No. 37295/97, judgment of 31 October 2002, final on 31 January 2003;

Jakupovic, Application No. 36757/97, judgment of 6 February 2003, final on 6 May 2003;

Radovanovic, Application No. 42703/98, judgment of 22 April 2004, final on 22 July 2004, and of 16 December 2004 (Article 41), final on 16 March 2005;

Maslov, Application No. 1638/03, judgment of 23 June 2008 (Grand Chamber))

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the breach of the applicants ' right to private and family life due to residence prohibitions imposed on them, and to their expulsion following criminal offences committed in Austria (violation of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing, similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2009)117

Information on the measures taken to comply with the judgments in the cases of

Yildiz, Jakupovic, Radovanovic and Maslov against Austria

Introductory case summary

The cases concern the breach of the applicants ' right to private and family life due to the residence prohibitions imposed on them under the 1992 and 1997 Aliens Act, and to their expulsion following criminal offences committed in Austria (violation of Article 8).

In September 1994 a 5-year residence ban was imposed on Mr Yildiz on account of two criminal convictions for shoplifting and theft, offences committed as a minor in 1993, and of three administrative convictions for breaches of traffic rules between 1992 and 1994. In 1997 he was expelled to Turkey , thus being separated from his wife and two-year old child.

In 1995 and 1996 Mr Jakupovic was twice convicted for burglary and sentenced to suspended terms of imprisonment. In September 1995 a 10-year residence prohibition was issued against him. In 1997, the 16 ‑ year old was deported to Sarajevo when there was no evidence that he still had close relatives living there.

Mr Radovanovic was convicted of aggravated robbery and burglary in 1997 and sentenced to a partly suspended prison term. Subsequently, a residence prohibition of unlimited duration was imposed on him. In 1998 he was expelled to the former Federal Republic of Yugoslavia , now Serbia .

On 3/01/2001 the Vienna Federal Police Authority imposed a ten-year exclusion order against Mr Maslov on account of two criminal sentences by the Vienna Juvenile Court in 1999 and 2000 to a total of two years and nine months ' unconditional imprisonment. This decision was upheld by the Vienna Public Security Authority and the Administrative Court , and the Constitutional Court declined to deal with the applicant ' s complaint for lack of prospects of success. On 22/12/2003 the applicant was deported to Sofia .

The European Court considered in all the cases that the applicants ' family and social ties with Austria were much stronger than any ties they had with their country of origin. Taking particular account of the fact that the applicants were juveniles at the time when they committed the criminal offences, it found that the measures adopted by the Austrian authorities were excessively rigorous. It concluded that the Austrian authorities had not struck a fair balance between the interests involved, namely between the applicants ' right to respect for their private and family life, and the prevention of disorder and crime.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Yildiz (37295/97)

-

-

8 000 + 42,78 EUR (default interest)

8 042,78 EUR

Paid on 30/05/2003

Jakupovic (36757/97)

-

-

7 936,09 EUR

Paid on 7/04/2003

Radovanovic (42703/98)

-

-

8 315 EUR

8 315 EUR

Paid on 14/04/2005

Maslov (1638/03)

-

3 000 EUR

13 097,06 EUR

Paid on 30/07/2008

b) Individual measures

The European Court awarded Mr Maslov just satisfaction for non-pecuniary damage. It considered that the finding of a violation constituted sufficient just satisfaction for non-pecuniary damages sustained by the other applicants. Subsequently, the residence prohibitions were lifted in all the cases.

In the Yildiz case, on 20/02/2004 the applicant was granted a type “D” visa allowing him to re-enter Austria (valid for a six-month stay). Until 25/05/2006 he held a tourist visa, but the Ministry of the Interior undertook to issue him a residence permit upon his request. To this end, on 21/10/2005 a settlement certificate ( Niederlassungsnachweis ) was issued and he had been repeatedly requested via his lawyer to collect it. However, the applicant failed to do so, nor has he later requested a residence permit.

In the Jakupovic case, in May 2003 the applicant was granted a type “C” visa allowing him to re-enter Austria , valid for a three-month stay. On 13/05/2005 he was issued an unlimited residence permit.

In the Radovanovic case, on 25/01/2005 the applicant was granted a certificate of residence (under the then applicable 1997 Aliens Act). This type of residence permit corresponded to the status he enjoyed prior to his expulsion and included the possibility of access to the labour market.

The exclusion order against Mr Maslov was lifted in domestic proceedings on 31/07/2008. The Austrian authorities indicated on 14/08/2008 that the applicant may enter the country at any time.

II. General measures

The former 1992 Aliens Act has been replaced twice, in 1997 and again in 2005. Since 1997, an explicit reference to Article 8§2 of the Convention is included in its text. Furthermore, when imposing a residence prohibition, the authorities have duly to balance the protection of private and family life against the public interest in expulsion taking due account of elements such as the degree of integration of the person concerned or of his or her family and the strength of existing family or other ties.

Furthermore, given the direct effect of the Convention and the European Court ' s case-law in Austria , the publication and dissemination of the Court ' s judgments to the competent Austrian authorities and courts should suffice to align their practice with the requirements of the Convention under Article 8 as they emerge from the present judgments.

For this purpose, the judgments were published in the Austrian Institute for Human Rights ' Newsletter (Yildiz: NL 2002, p.251 (NL 02/6/04), available online at http://www.menschenrechte.ac.at/docs/02_6/02_6_04 ; Jakupovic: NL 2003, p.25 (NL 03/1/06) available online http://www.menschenrechte.ac.at/docs/03_1/03_1_06 Radovanovic: NL 2004, p.87 (NL 04/2/11), see http://www.menschenrechte.ac.at/docs/04_2/04_2_11 ; and Maslov: NL 2008, p.157, (NL 08/3/11), available online at http://www.menschenrechte.ac.at/docs/08_3/08_3_11 ); and in Österreichische Juristenzeitung (Yildiz and Jakupovic: ÖJZ 2003, p.158 and p.567, respectively; Radovanovic: ÖJZ 2005, p.76; Maslov: ÖJZ 2008, p.779). Furthermore, the Court ' s judgments were disseminated to the Administrative Court , the Constitutional Court , and all authorities responsible for decisions on residence prohibitions, to provide guidelines when dealing with juvenile offenders.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that Austria has thus complied with its obligations under Article 46 paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies .