DISSENTING OPINION OF JUDGE STEINER

(Translation)

Much to my regret, and despite the changes that have been made to the “Law” part of the judgment on the question of whether it was necessary to expel the applicant, I am unable to agree with the reasoning of the majority.

My reasons are as follows: I maintain to a large extent the points I made in my dissenting opinion annexed to the Chamber judgment and to which I now refer, with one reservation.

To my mind, the main issue in the present case centres on the assessment of the factors militating for or against the applicant. It goes without saying that I agree with the judgment as far as the general interpretation is concerned. I disagree only with the conclusion as to the proportionality.

The exclusion order of which the applicant complains is of ten years ’ duration. The majority consider (see paragraphs 98, 99 and 100 of the judgment ) that when weighing the interests of the applicant, who was a minor at the material time, against the interest s of Austrian society in expelling all aliens who have seriously infringed the law the balance tips in favour of the applicant. The consideration given to the proportionality of the measure must also embrace other factors, including the possibility open to the applicant of requesting – after a certain amount of time has elapsed – that the authorities reverse their decision. He would then be able to argue that he has not committed any further criminal offences in his current country of residence. He would also be able to argue that Bulgaria , of which he is a national, is now a member of the European Union. These two factors combined provide the applicant with a possibility that he did not have before. Having regard to the requirement of proportionality which must also be considered alongside the margin of appreciation afforded to States in a sphere in which the public expects decisions that safeguard individual rights but also the legitimate rights of society, I incline to the conclusion that there has not been a violation.