Tuesday 24 June 2008

Grand Chamber Judgment Maslov v. Austria

Yesterday, the Grand Chamber issued its judgment in the Maslov case on exclusion orders. I am very grateful that Maarten den Heijer, my former colleague from Leiden and an expert on migration law and human rights, was so kind to write a guest blog message on the case:

Juvenile offender must be reintegrated, not expelled

With Euro 2008 approaching the stage of the semi-finals, the European Court has settled the score between Maslov and Austria in favor of Maslov – with a 16 to 1 vote. The judgment of the Grand Chamber outlines the increasing importance the Court attaches to children’s rights, and is especially important for immigrant children.

The case concerned a ten-year exclusion order imposed by Austria on the 16 year-old Juri Maslov, of Bulgarian origin, who had been living legally in Austria with his family since the age of six. Between the age of 14 and 16 Maslov committed a range of offences – from burglary to assault – and was twice convicted on no less than 40 counts in total. After having served his prison term, the Austrian authorities decided Maslov’s presence in Austria to be undesirable and ordered him to leave the country.

According to settled case law, Article 8 ECHR imposes on States the obligation to weigh the interests of public order against the interests of the individual when expelling a person, which includes paying account to the social, cultural and family ties of the individual. It was with a meager 4 to 3 majority that the Chamber of the Court in March 2007 (see judgment here) found the scales to tilt in favor of Maslov, with the dissenters insisting that ‘the rights of non-nationals under Article 8 should not be overprotected’.

The balance of powers in the Grand Chamber was clearly different – with judge Steiner being the only Chamber dissenter who was also part of the Grand Chamber. The Grand Chamber makes clear that the margin of appreciation which is normally accorded to States in balancing the interests of public order with those of the expellee, is considerably narrower when dealing with children. The Court refers to Article 3 and 40 of the Convention on the Rights of the Child and interprets the best interests of the child to encompass an obligation to facilitate the child’s reintegration after having committed an offense. Reintegration, in the Court’s logic, will normally not be served by ordering expulsion, since expulsion will severe the social and family ties of the child. This reasoning goes some way in enhancing the residence status of immigrant children and makes clear that when dealing with juvenile offenders who are aliens, States must not simply take the easy option by expelling the juvenile.

It must be noted that the judgment falls short from an absolute prohibition on the expulsion of alien juvenile delinquents. Considerable weight is attached to the finding that Maslov had committed relatively minor, non-violent offences. In earlier judgments, the Court considered the expulsion of juveniles who had been convicted for aggravated rape (Bouchelkia v France) and manslaughter (Kilic v Denmark) not to raise an issue under Article 8.

The legal relationship between expulsion of aliens and their right to private and family life under Article 8 is very much judges-made law. For an insightful analysis of the Court’s approach, read Daniel Thym, ‘Respect for Private and Family Life under Article 8 ECHR in Immigration Cases: A Human Right to Regularize Illegal Stay?’, published in the International & Comparative Law Quarterly, volume 57, January 2008.

It is also noteworthy that the current president of the Court, Jean-Paul Costa, has in the past expressed his regret that exclusion orders exist, for they constitute double punishment in the humane sense of the term. See his concurring opinion in Maaouia v France.

Thank you, Maarten!