CEDH · PRESS;GENERAL;ENG — 31 octobre 2002

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     540   31.10.2002   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Austria and Portugal   The European Court of Human Rights has today notified in writing the following two Chamber judgments, neither of which is final. [1]   Section 3   (1)     Yildiz v. Austria (application no. 37295/97)                                            Violation Article 8 Mehmet Yildiz, Güler Yildiz and Yesim Yildiz are all Turkish nationals, born in 1975, 1976 and 1995 respectively. When they introduced the application, they were all living in Austria.   Mr Yildiz went to Austria in 1989 to live with his parents and siblings. As from 1994 he cohabited with Güler, who was born in Austria and has lived there all her life. They married under Muslim law in April 1994 and under Austrian civil law in March 1997. Yesim, their daughter, was born on 14 August 1995.   In 1993 Mr Yildiz, while still a minor, was convicted twice by the criminal courts, once for shop-lifting with a sentence of three days’ imprisonment suspended on probation, and once for theft without a sentence being pronounced. Between 1992 and April 1994 he was convicted seven times of traffic offences, in particular driving without a licence and once ignoring a red light and high speeding. The fines imposed on him totalled 28,000 Austrian schillings, equivalent to 2,035 euros (EUR).   On 21 September 1994 Dornbirn District Authority imposed a five-year residence ban on Mr Yildiz.   His subsequent appeal was dismissed on the ground that a residence ban has to be issued against an alien, among other things, if he has been convicted more than once for similar offences by a domestic or foreign court, or if a fine has been imposed on him more than once for a grave administrative offence by an administrative authority. Despite Mr Yildiz’ high degree of integration in Austria, it was also found that the public interest in issuing a residence ban outweighed his interest in staying. This decision was served on Mr Yildiz on 8 February 1995.   On 11 May 1995 he was taken into detention with a view to his expulsion.   Mr Yildiz lodged a complaint with the Administrative Court. He submitted that the contested decisions violated his right to respect for his private and family life and that Austria was bound by an agreement between the European Union and Turkey, which granted Turkish workers who had been legally employed in an EU member State for a certain period a residence permit. The Administrative Court dismissed both complaints, noting that the rights contained in the agreement in question applied only after a certain number of years of lawful employment, which the first applicant had failed to prove in his case.   On 16 June 1997 an order to leave Austrian territory was served on the first applicant, with which he complied on 1 July 1997.   Mr Yildiz is currently living in Turkey. The validity of his residence ban expired in September 1999. However, he claims that the possibilities of legally returning to Austria are very limited and involve long waiting periods. In March 2001 Mr and Ms Yildiz divorced.   The applicants complained that the residence ban issued against Mr Yildiz violated their right to respect for their family life, as guaranteed by Article 8 (right to respect for family life) of the European Convention on Human Rights. They also contended that the interference with their family life was not “in accordance with the law”, since the relevant domestic law was overruled by EU law. They further claimed that the residence ban was disproportionate, especially as Mr Yildiz had all his family ties in Austria and had only been sentenced to modest penalties for offences of a petty nature.   The European Court of Human Rights observed that Mr Yildiz was not a second-generation immigrant; he came to Austria in 1989 at the age of 14 and had therefore to have links with his country of origin and to be able to speak Turkish. On the other hand, he was still an adolescent when he came to Austria, where his close family was still living. In December 1996, when the Administrative Court confirmed the residence ban against him, he had been living in Austria for seven years, he had been working there and had been co-habiting for a little less than three years with Ms Yildiz, a Turkish national, who was born in Austria and had lived there all her life. Their daughter, the third applicant, was one year and four months old at the time. In fact, the Austrian authorities issuing the residence ban acknowledged that Mr Yildiz had reached a high degree of integration in Austria. Nevertheless, the Court considered that, regarding the possible effects of the residence ban on his family life, the authorities failed to establish whether Ms Yildiz could be expected to follow her husband to Turkey, in particular whether she spoke Turkish and maintained any links, other than her nationality, with that country. While it was true that the applicants’ family situation had changed in the meantime, the Court had to make its assessment in the light of the position when the residence ban became final.   Concerning the offences committed by the first applicant, the Court found that, though they were not negligible, the domestic authorities considered them to be of a minor nature, as was shown by the modest penalties imposed. Moreover, Mr Yildiz did not commit any further offences between April 1994 and December 1996, when the residence ban proceedings were terminated. The Court concluded that the authorities failed to strike a fair balance between the different interests involved and that the interference with the applicants’ right to respect for their family life was not proportionate to the legitimate aim pursued.   The Court, therefore, held, unanimously, that there had been a violation of Article 8. The Court also held, unanimously, that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants. The Court awarded EUR 8,000 for costs and expenses. (The judgment is in English only.)   (2)     Gil Leal Pereira v. Portugal (no. 48956/99)                                     Violation Article 6 § 1 António José Gil Leal Pereira, a Portuguese national born in 1956 and living in São Domingos de Rana (Portugal), complained about the length of the criminal proceedings against him, concerning fraud, which lasted nine years and two months.   The European Court of Human Rights held, unanimously, that there had been a violation of Article 6 § 1 (right to a fair trial within a reasonable time) and awarded the applicant EUR 5,000 for non-pecuniary damage and EUR 1,250 for costs and expenses. (The judgment is in French only.) ***   These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.