DISSENTING OPINION OF JUDGE LOUCAIDES

I am unable to agree with the majority in this case that there has been a violation of Article 8 of the Convention. The majority, in reaching their conclusion, took into account the following facts in particular: (1) that the offences of which the applicant was convicted were “to be qualified as non-violent juvenile delinquency”; (2) “the applicant ’ s good conduct after his release from prison”; (3) “his lack of ties with his country of origin”; and (4) the fact that the residence prohibition was going to have a duration of ten years. The majority found that the prohibition in question was disproportionate to the legitimate aim pursued. There are, I believe, other facts which may lead to a different conclusion, such as those referred to in the dissenting opinion of Judge Steiner, with which I agree.

What has been crucial for me is my conclusion that the residence prohibition in this case cannot be said to have exceeded the margin of appreciation of the respondent State. I believe that the majority did not give sufficient weight to this aspect of the case. According to the Court ’ s case-law, “[ i ]n determining whether an interference was ‘ necessary in a democratic society ’ , the Court makes allowance for the margin of appreciation that is left to the Contracting States” (see Berrehab v. the Netherlands , judgment of 21 June 1988, Series A no. 138, p. 15, § 28 ; and also W. v. the United Kingdom , judgment of 8 July 1987, Series A no. 121 ‑ A, p. 27, § 60 (b) and (d), and Olsson v. Sweden (no. 1) , judgment of 24 March 1988, Series A no. 130, pp. 31-32, § 67).

In view of the nature of the case, it may be useful to bear in mind the approach of international law on which the power to expel aliens is founded, to the extent that this approach is compatible with the relevant provisions of the Convention and the case-law concerning them. According to international law [1] , States have the power to expel aliens, though this power is not absolute. Aliens must be treated in a civilised manner and the power of expulsion must be exercised in good faith. Due consideration must be given to the interests of the individual, including his basic human rights, his family and other links with the State of residence. These must be weighed against the competing demands of State interests as regards such matters as public safety and prevention of disorder or crime. International law allows States a fairly wide margin of appreciation in determining whether these interests justify an expulsion. They have the right to judge by national criteria whether the facts and circumstances warrant the expulsion. As regards both the grounds for expulsion and the question whether an individual qualifies for expulsion on those grounds, the expelling State is in the best position to pronounce upon such matters. State practice accepts that

expulsion is justified in cases of involvement in criminal activities. This applies to the facts in the present case.

I have in the past expressed the view that “general principles of international law are not embodied in the Convention except in so far as reference is expressly made to them by the Convention ... Therefore, one should be reluctant to accept restrictions on Convention rights derived from principles of international law...” (see my dissenting opinion in McElhinney v. Ireland [GC], no. 31253/96, ECHR 2001-XI). However, in the present case the above principles of international law are not irreconcilable with the provisions of Article 8 of the Convention which are at issue in this case. It is, I think, useful to recall here the principle established by the case-law of the Court to the effect that the Convention “... should so far as possible be interpreted in harmony with other rules of international law of which it forms part...” (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI). In fact I believe that in the present case it is reasonably possible to give effect to both the international law principles and the relevant Convention right without any problem of contradiction between them.

I referred to the principles of international law and used them as an aid for the interpretation and application of the concept of “margin of appreciation” in the context of expulsion of aliens, which is a permissible restriction of the right to respect for private life under Article 8 of the Convention and the jurisprudence of the Court. It is obvious that the “margin of appreciation” for expelling aliens plays a special role in such cases.

The case-law of the Court has interpreted the right to respect for private life in a progressive manner. According to this case-law, the right in question includes the prohibition of the absolute power to expel aliens from a country where they have their residence. Care should be taken, however, not to overprotect in practice the corresponding right of non-nationals under Article 8 of the Convention so as to emasculate the power of States to effectively enjoy a fairly wide margin of appreciation in safeguarding their interests in respect of which an expulsion under Article 8 of the Convention is permissible and determining whether the continued residence of any alien is or is not necessary.

Having regard to the foregoing considerations, and taking into account the facts and circumstances of the case and, in particular, the nature, seriousness and repetition of the applicant ’ s offences, his lack of social ties in Austria, and the fact that the residence prohibition was not unlimited in time, I find that this prohibition was within the margin of appreciation of the respondent State in the interests of public safety and for the prevention of disorder or crime, and therefore does not amount to a violation of Article 8.

STATEMENT OF DISSENT BY JUDGE VAJIĆ

I do not share the opinion of the majority as to the interpretation made of the general principles of the Court ’ s case- law as set out in the recent judgment Ãœner v. the Netherlands ( [GC], no. 46410/99, ECHR 2006 ‑ ... ) .