Information Note on the Court’s case-law 50
February 2003
Jakupovic v. Austria - 36757/97
Judgment 6.2.2003 [Section III]
Article 8
Article 8-1
Respect for family life
Respect for private life
Deportation of 16-year old to Bosnia-Herzegovina: violation
Facts: The applicant and his brother, nationals of Bosnia-Herzegovina born in 1979 and 1985 respectively, joined their mother in Austria in 1991. Their mother subsequently remarried and had two further children. In May 1995 a prohibition on possession of arms was issued against the applicant and in August 1995 he was convicted of burglary and given a suspended sentence of five months’ imprisonment. As a result, the District Administrative Authority issued a ten-year residence prohibition against him. In February 1996 he was again convicted of burglary and given a suspended sentence of ten weeks’ imprisonment. His appeal against the residence prohibition was dismissed in May 1996 and a subsequent complaint was dismissed by the Administrative Court in February 1997. The applicant was duly deported.
Law: Article 8 – The residence prohibition constituted an interference with the right to respect for private and family life which was in accordance with the law and pursued the legitimate aim of the prevention of disorder and crime. As to the necessity of the measure, the applicant had been in Austria for only four years when the residence prohibition was issued and his situation was not comparable to that of a second-generation immigrant, as he must have been well acquainted with the language and culture of his country of origin. Nevertheless, the residence prohibition seriously upset his private and family life: he had arrived in Austria with his brother to join their mother and had apparently no close relatives in Bosnia. Very weighty reasons had to be put forward to justify the expulsion of a 16-year old, alone, to a country which had recently experienced a period of armed conflict and where he had no close relatives. In that respect, the two convictions for burglary, for which only suspended prison sentences were imposed, could not be considered particularly serious, as the offences did not involve any element of violence. While the seriousness of the prohibition on possession of arms should not be underestimated, it could not be compared to a conviction and there was no indication that charges had ever been brought. The Austrian authorities had therefore overstepped their margin of appreciation and the interference was not proportionate to the aim pursued.
Conclusion: violation (4 votes to 3).
Article 41 – The Court considered the finding of a violation in itself constituted sufficient just satisfaction in respect of the alleged non-pecuniary damage. It made an award in respect of costs and expenses.
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This summary by the Registry does not bind the Court.
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