Court/Judicial body: European Court of Human Rights
Date: June 23, 2008 CRC
Provisions: Article 1: Definition of a child Article 3: Best interests of the child Article 40: Administration of Justice
Other international provisions:European Convention on Human Rights ( Article 8 – respect for private and family life)
Domestic provisions: Aliens Act, 1997 (Austria), Sections 2, 36, 37 and 38 Civil Code (Austria), Article 21 Juvenile Court Act (Austria), Section 5
Background:Maslov was six years old when his parents lawfully emigrated with him to Austria from Bulgaria. His parents ultimately became Austrian nationals, and he was granted an unlimited settlement permit. In 1999, when Maslov was 15, he was convicted of a number of drug-related offences. He was given a suspended sentence, but this was reinstated when he was convicted of further offences included aggravated burglary the following year. In January of 2001, Maslov was given a 10-year “exclusion order,” which essentially banished him to Bulgaria. He fought the order for two years, but was eventually deported to Bulgaria, where he neither had any family nor spoke the language.
Issue and resolution: Immigration; juvenile justice; best interests of the child. The Court held that Maslov’s deportation to Bulgaria had violated his right to family life, and that the Austrian courts had not given adequate consideration to his best interests in ordering his exclusion.
Court reasoning: Given the fact that Maslov was completely settled in Austria, and that all of his family and community ties were there, the Court found that the mostly non-violent offences Maslov had committed did not justify his expulsion to Bulgaria. Because Maslov was a minor when these offences occurred, the Austrian courts should have considered his best interests when determining whether to order his deportation. Moreover, deporting Maslov was out of step with the Convention on the Rights of the Child and its provisions on the aims of juvenile justice, which should seek to reintegrate children back into society rather than remove them altogether.
Dissenting opinion: The dissent felt that the majority had not properly weighed the Austrian interest in preventing crime, especially in light of the fact that the order was not permanent, and that Maslov could seek a reconsideration directly from the Austrian authorities.
Excerpt citing CRC and other relevant human rights 36 . The United Nations Convention on the Rights of the Child of 20 November 1989, to which Austria is a State Party, provides: Article 1 “For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.” Article 3 “1 . In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Article 40 “1 . States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.” 37 . The Committee on the Rights of the Child, in its concluding observations on the second periodic report of Austria (see CRC/C/15/Add. 251, 31 March 2005, §§ 53 and 54), expressed its concern about the increasing number of persons below the age of 18 placed in detention, a measure disproportionately affecting those of foreign origin, and recommended with regard to Article 40 of the Convention on the Rights of the Child that appropriate measures to promote the recovery and social integration of children involved in the juvenile justice system be taken. 38 . In its General Comment no. 10 (2007) on Children’s rights in juvenile justice (see CRC/C/GC/10 25 April 2007, § 71), the Committee on the Rights of the Child emphasised with regard to measures in the sphere of juvenile justice: “The Committee wishes to emphasise that the reaction to an offence should always be in proportion not only to the circumstances and the gravity of the offence, but also to the age, lesser culpability, circumstances and needs of the child, as well as to the various and particularly long-term needs of the society. A strictly punitive approach is not in accordance with the leading principles for juvenile justice spelled out in Article 40 (1) of CRC … In cases of severe offences by children, measures proportionate to the circumstances of the offender and to the gravity of the offence may be considered, including considerations of the need of public safety and sanctions. In the case of children, such considerations must always be outweighed by the need to safeguard the well-being and the best interests of the child and to promote his/her reintegration.” 39 . Given the membership in the European Union of Austria (as from 1 January 1995) and of Bulgaria (as from 1 January 2007) the following two Directives should be noted among those dealing with matters of migration, including the requirements for expulsion of either nationals of another member State or third-country nationals. … 41 . The second one is 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. It provides… Article 28 “Protection against expulsion 1 . Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided in its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin. 2 . The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security. 3 . An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:(a) have resided in the host Member State for the previous 10 years; or (b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.” 82 . The Court considers that where offences committed by a minor underlie an exclusion order regard must be had to the best interests of the child. The Court’s case-law under Article 8 has given consideration to the obligation to have regard to the best interests of the child in various contexts (for instance in the field of child care; see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 148, ECHR 2000-VIII), including the expulsion of foreigners (see Üner, cited above, § 58). In Üner the Court had to consider the position of children as family members of the person to be expelled. It underlined that the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant were likely to encounter in the country to which the applicant was to be expelled, was a criterion to be taken into account when assessing whether an expulsion measure was necessary in a democratic society. The Court considers that the obligation to have regard to the best interests of the child also applies if the person to be expelled is himself or herself a minor, or if — as in the present case — the reason for the expulsion lies in offences committed when a minor. In this connection the Court observes that European Union law also provides for particular protection of minors against expulsion (see paragraph 41 above, Article 28 § 3(b) of Directive 2004/38/EC). Moreover, the obligation to have regard to the best interests of the child is enshrined in Article 3 of the United Nations Convention on the Rights of the Child (see paragraph 36 above). 83 . The Court considers that, where expulsion measures against a juvenile offender are concerned, the obligation to take the best interests of the child into account includes an obligation to facilitate his or her reintegration. In this connection the Court notes that Article 40 of the Convention on the Rights of the Child makes reintegration an aim to be pursued by the juvenile justice system (see paragraphs 36–38 above). In the Court’s view this aim will not be achieved by severing family or social ties through expulsion, which must remain a means of last resort in the case of a juvenile offender. It finds that these considerations were not sufficiently taken into account by the Austrian authorities. CRIN Comments: CRIN believes this decision is consistent with the CRC. Article 40 of the Convention requires that States design juvenile justice systems to “promot[e] the child’s reintegration and the child’s assuming a constructive role in society”, and extreme measures such as expulsion from a country should only be used as a matter of absolute last resort. The Court also wisely cites CRC Article 3, which mandates that children’s best interests be considered in all proceedings that concern them, whatever the nature of the actions that underlie these proceedings. Citation: Maslov v. Austria,  ECHR [GC] 1638/03 Link to Full Judgment:http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=28185&sessionId=67095877&skin=hudoc-en&attachment=true This case summary is provided by the Child Rights Information Network for educational and informational purposes only and should not be construed as legal advice. 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