Communicated on 17 April 2014
FIRST SECTION
Application no. 30441/09
Gokhan KÜLEKCI
against Austria
lodged on 4 June 2009
STATEMENT OF FACTS
The applicant, Mr Gokhan Külekci, is a Turkish national, who was born in 1990 and currently lives in Turkey. He is represented before the Court by Ms B. Kurtulan, a lawyer practising in Vienna.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was born in Austria in 1990. His parents divorced in 1992 and his father was awarded custody. In the same year, his grandparents, who had been looking after him while his father was working, moved to Turkey and took the applicant and his sister with them. In 1998, when he was seven years old, he moved back to Austria and started attending school. He held a residence permit and therefore was lawfully present in the territory of Austria.
On 13 March 2006 the Vienna Regional Criminal Court convicted the applicant of aggravated robbery, attempted theft and unauthorised use of a motor vehicle. He was sentenced to one year imprisonment, which was suspended for a probationary period of three years. At the time of the offence, he was fourteen years old. Together with four of his friends he had assaulted a man and stolen money and cigarettes from him. The applicant had jumped on the victim from behind, while his friends were beating and kicking the man, causing him serious bodily harm. Further, the applicant had attempted to shoplift, and he had utilized a moped without the owner’s consent. The court noted in its reasoning that the applicant previously had to change schools several times and was notorious for excessive acts of violence. It observed that he had virtually no age-appropriate capacity for reflection, and attested that he had an enormous potential for aggression, which he used as his strategy for problem-solving. The court considered as mitigating factors his previously clean record, his confession and willingness to give redress to the victim, but as aggravating factor that he had committed a crime and two misdemeanours.
On 31 May 2006 the Vienna Regional Criminal Court again convicted the applicant for aggravated robbery. He was sentenced to two and a half years imprisonment. At the time of the offence, he was fifteen years old. Together with a group of his friends, he had partly attempted, partly succeeded to steal the handbags of nine elderly women through threat or use of force, which resulted in two of the women being seriously injured. The court argued in its reasoning that the applicant had taken a leading role in the robberies. He ripped the handbags from some of the victims; grabbed one of them from behind, holding her mouth and dragging her to the ground; hit another one on the head and pushed his knee in her back, so she would fall down; and also beat some of them. A mitigating factor was his confession; an aggravating factor was the repeated commission of the offence. The court came to the conclusion that he was one of the main perpetrators, which is why there was no leeway to pronounce a more lenient sentence than two and a half year’s imprisonment.
On 7 August 2006 the Vienna Federal Police Authority (Bundespolizeidirektion) imposed a ten-year exclusion order (Aufenthaltsverbot) on the applicant pursuant to section 60 subparagraphs 1 and 2 (1), section 63 subparagraphs 1 and 2, and section 66 of the Aliens Police Act (Fremdenpolizeigesetz). It found that even though his whole family lived in Austria, the expulsion was justified in order to protect public order and security because of the severity of his offences. It did not grant suspensive effect to an eventual appeal.
On 16 March 2007 the Vienna Security Authority (Sicherheitsdirektion) partly granted the appeal and limited the exclusion order to eight years.
On 30 April 2007 the applicant was released from prison for good conduct after having served half of the sentence. His probation assistant attested that the applicant had developed a sense of justice after his conviction and that the cooperation with him was good. He had worked as an apprentice during his time in prison. After his release, he participated in several trainings and was looking for a job.
On 11 December 2007 the Administrative Court set aside the Security Authority’s decision for lack of jurisdiction and held that the Independent Administrative Panel (Unabhängiger Verwaltungssenat) was the competent authority to examine the appeal.
On 21 July 2008, after having held an oral hearing, the Vienna Independent Administrative Panel partly granted the appeal and limited the exclusion order to five years. It considered that especially the robberies were serious offences which demonstrated a severe disrespect by the applicant for the integrity and property of others. The applicant had been one of the main perpetrators. The victims were mostly elderly, fragile women, who were physically inferior to him and his friends. Some of them got severely injured. His potential of violence and aggression was remarkable and seemed to have increased between the first and the second conviction. The Independent Administrative Panel further took into consideration that the applicant was only fourteen, respectively fifteen years old at the time of the offences, and therefore was still in the process of reaching maturity. This was however put into perspective that he did not offend only once, but multiple times, and in a particularly brutal manner.
The Independent Administrative Panel proceeded to examine whether it could be assumed that the applicant still posed a threat to public order and safety, in the light of the positive assessment by his probation assistant who had also testified before it, and taking into account that he had not reoffended in over a year. It came to the conclusion that even though he seemed to have improved his attitude, the short time since his release was not enough to prove that he was not a danger to society anymore.
The Independent Administrative Panel then assessed whether there was an interference of the measure with the applicant’s rights under Article 8. It held that an expulsion of so-called second generation migrants as the applicant was subject to stricter criteria than an expulsion of other foreigners. Referring to the Court’s judgments in the cases Boultif v. Switzerland (no. 54273/00, ECHR 2001‑IX), Üner v. the Netherlands [GC] (no. 46410/99, ECHR 2006‑XII), and Maslov v. Austria [GC] (no. 1638/03, ECHR 2008), it found that in contrast to the Maslov case, the applicant had repeatedly committed serious crimes of a violent nature. Because of his family and his social integration in Austria, an exclusion order constituted an interference with his rights under Article 8. However, he had almost reached full age at the time of its decision. An economic integration could not be observed as he was unemployed at the time. His mother still lived in Turkey, whom he could get in touch with, even though he had no contact with her at the time. The serious nature of the offences and the resulting public interest in his expulsion therefore outweighed his private interest in remaining in the country, but because of his young age, it could be assumed that a five year exclusion order was sufficient.
The Independent Administrative Panel reminded the applicant that according to Article 32 § 1 of the Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, he had the right to apply for an abrogation of the exclusion order at the latest after three years if the circumstances had substantially changed.
On 30 September 2008 the Constitutional Court and on 16 December 2008 the Administrative Court declined to deal with the applicant’s complaint against the Independent Administrative Panel’s decision. On 10 February 2010 he was expelled to Turkey. At the time, he was nineteen years old.
B. Relevant domestic law and practice
At the material time the Alien Police Act 2005 was in force. Sections 60, 61, 63 and 66, in so far as relevant, read as follows:
Section 60
(1) An exclusion order against an alien can be adopted if due to certain facts, the assumption is justified that his stay
1. endangers public order and security or
2. runs counter to other public interests as enumerated in Article 8 § 2 of the European Convention on Human Rights.
(2) Certain facts in the sense of subparagraph 1 are in particular if an alien
1. was finally convicted by a domestic court to an unconditional prison sentence of more than three months, to a prison sentence of more than six months partly or entirely suspended on probation, or has been convicted more than once for criminal offences based on the same harmful tendency.
2. ...
Section 61
An exclusion order must not be issued if
...
(4) the alien has grown up from early childhood on in Austria and has legally been a resident for a long time, except if the alien was convicted to an unconditional prison sentence of more than two years or has materialized one of the elements enumerated in section 60 subsection 2-(12) to (14).
Section 63
(1) An exclusion order or a return prohibition can be issued in the cases of section 60 subsection 2-(1), (5), and (12) to (14) for an unlimited period of time, otherwise for a period not to exceed ten years.
(2) In determining the duration of the exclusion order or return prohibition, the relevant circumstances of the case are to be taken into account. The time-limit begins with the onset of enforceability.
Section 66
(1) If an expulsion interfered with the private- or family life of the foreigner, an expulsion is admissible if it is strictly necessary to achieve the aims listed in Article 8 § 2 of the European Convention on Human Rights.
(2) ...
The Administrative Court held that only aliens who had grown up in Austria from the age of three or younger had grown up there “from early childhood” within the meaning of section 61 § 1 (4) of the Alien Police Act (see, for instance, judgment of 10 October 2003, no. 2003/18/0254).
COMPLAINT
The applicant complains under Article 8 of the Convention that the exclusion order and subsequent expulsion violated his right to respect for his private and family life. He claimed having no ties with his home country anymore. He has spent the majority of his life in Austria and spoke German better than Turkish. He asserted that he was fully integrated in Austria. While his whole family lived in Austria, the only close relative in Turkey was his mother, but he claimed not to know where she lived. He had committed the offences when he was only an adolescent. After his release from prison, he had not reoffended and hence did not pose a threat to public order or safety anymore.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to respect for his private and family life, contrary to Article 8 of the Convention?
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