FIRST SECTION
DECISION
Application no. 36033/08
Senad HODZIC
against Austria
The European Court of Human Rights (First Section), sitting on 18 September 2012 as a Committee composed of:
Anatoly Kovler, President,
Mirjana Lazarova Trajkovska,
Linos-Alexandre Sicilianos, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 22 July 2008,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Senad Hodzic, is a national of Bosnia and Herzegovina, who was born in 1980.
The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs.
The applicant came to Austria with his family in 1992 and lived there ever since. He was not married, but had a minor daughter, whose date of birth he did not specify.
On 12 November 2007 the Vienna Regional Criminal Court sitting as an Assize Court convicted the applicant of attempted aggravated robbery and sentenced him to five years’ imprisonment.
The applicant lodged a plea of nullity against that judgment, which was dismissed by the Supreme Court on 1 April 2008. The applicant’s appeal against the sentence was dismissed by the Vienna Court of Appeal on 19 May 2008.
The applicant had two prior convictions: in 1999, he was convicted of negligent bodily harm by the Donaustadt District Court and sentenced to a fine of 70 daily rates in the amount of 100 Austrian Schilling. On 29 April 2003, the Vienna Regional Criminal Court convicted the applicant of aggravated threat with a knife and sentenced him to three months’ imprisonment, suspended on probation for three years.
On 9 June 2008 the Vienna Federal Police Authority issued an exclusion order of unlimited duration (unbefristetes Aufenthaltsverbot). It referred to the applicant’s criminal record, his lack of integration in the labour market and the ensuing risk that he would re-offend after his release from prison. With regard to the applicant’s interests under Article 8 of the Convention, the authority found that the public interests in security and the prevention of disorder and crime outweighed the applicant’s private ones.
The applicant appealed against the exclusion order. He claimed that his whole family lived in Austria, including his two years’ old daughter. He would have no relatives in Bosnia and Herzegovina. Furthermore, he would risk persecution in Bosnia due to his Muslim faith.
On 9 January 2009 the Vienna Public Security Authority dismissed the applicant’s appeal as unfounded. The authority acknowledged that the exclusion order constituted an interference with the applicant’s right to respect for his private and family life due to his stay in Austria for (then) 16 years. Furthermore, his parents and his (then) two years’ old daughter lived in Vienna. However, it stated the applicant’s criminal record showed that he was either not able or not willing to respect the Austrian legal order and emphasised the seriousness of his last offense. It further stated that the applicant could observe his obligations towards to his daughter also from abroad. The authority also dismissed the applicant’s argument that he feared persecution upon his return to Bosnia and Herzegovina.
On 20 February 2009 the Administrative Court refused to grant the applicant legal aid to lodge a complaint due to lack of prospects of success.
On 24 February 2009 the Constitutional Court dismissed the applicant’s request for legal aid for the same reasons.
On 23 September 2011 the applicant’s complaint under Article 8 was communicated to the respondent Government.
The Government of Bosnia and Herzegovina did not respond within the time limit indicated if they wished to exercise their right to intervene in the present case. The Court therefore informed the parties on 3 February 2012 that it assumed that the Bosnian Government did not wish to intervene in the present proceedings.
COMPLANTS
The applicant complained in substance under Article 8 of the Convention that the exclusion order violated his right to respect for his private and family life.
The applicant also complained, relying in substance on Article 6 of the Convention, of the outcome of the criminal proceedings against him.
THE LAW
On 3 February 2012 and on 6 March 2012 the Court sent the Government’s observations on the application to the applicant. However, those letters were returned by the postal service with the remark “addressee has moved”. The applicant has not informed the Court of any change of address.
Nevertheless, the Court conducted an inquiry and resent the letter informing the applicant of the communication of the application and the Government’s observations while extending the time-limit for the applicant’s reply on the observations via registered mail to the lastly known address in Vienna that the Court could identify in the course of its inquiries.
On 3 July 2012 that letter with its enclosures was returned to the Court by the postal service with the remark “not collected”.
The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
André WampachAnatoly Kovler
Deputy RegistrarPresident
Full & Egal Universal Law Academy