AS TO THE ADMISSIBILITY OF
Application No. 25777/94
by Milun JANKOVIC
against Austria
The European Commission of Human Rights (First Chamber) sitting in
private on 28 June 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 June 1994 by
Milun Jankovic against Austria and registered on 24 November 1994 under
file No. 25777/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant is a national of former Yugoslavia born in 1950 and
at the time of the introduction of the application had been residing
in Dornbirn (Austria). Before the Commission he is represented by Mr.
W. L. Weh, a lawyer practising in Bregenz.
On 28 September 1992 the applicant applied to the Dornbirn
District Administrative Authority (Bezirkshauptmannschaft) for a
residence permit.
On 8 February 1993 the District Administrative Authority refused
to grant the applicant a residence permit. The Authority relied on
Section 10 para. 1 subpara. 6 of the Aliens Act, Federal Law Gazette
No. 838/1992 (Fremdengesetz).
On 16 March 1993 the applicant introduced a complaint to the
Constitutional Court against the District Administrative Authority's
decision of 8 February 1993. He submitted that the District
Administrative Authority had failed to take his private and family
situation into account. He had lived in Austria since 1990, where his
daughter and his son-in-law were also living and since 13 March 1992
he had been a partner in a building cleaning company which he owned
together with his daughter and son-in-law.
On 15 April 1993 the District Administrative Authority issued a
deportation order (Ausweisungsbescheid) against the applicant, relying
on Section 17 para. 1 of the Aliens Act. The Authority found that his
request for a residence permit had been refused on 8 February 1993 and
his stay in Austria was therefore unlawful. It noted further that the
applicant had entered Austria in June 1990 without a visa and
registered with the police on 18 June 1990. Since at that time the
applicant could enter Austria without a visa for a period of three
months his stay in Austria had been lawful until 16 September 1990.
He was a partner in a building cleaning company and worked in this
company. His wife lived in Yugoslavia. The Authority concluded that
the applicant was not strongly integrated into Austria and that his
connections to his home country were much stronger. The Authority
concluded that the applicant's deportation was necessary in the
interest of public peace and order and for the economic well being of
the country.
On 3 May 1993 the applicant appealed against the deportation
order.
On 2 July 1993 the Constitutional Court refused to entertain the
applicant's complaint of 16 March 1993 for lack of prospect of success
and referred the case to the Administrative Court (Verwaltungs-
gerichtshof).
On 22 June 1993 the Vorarlberg Public Security Authority
(Sicherheitsdirektion) dismissed the applicant's appeal of 3 May 1993.
The Public Security Authority found that the applicant's deportation
could interfere with his private and family life. However, since
16 September 1990 he had stayed unlawfully in Austria and waited for
more than two years before he even tried to regularise his stay in
Austria. It was necessary in the public interest that the authorities
had a comprehensive knowledge of aliens staying in Austria. A long
unlawful stay of an alien, like in the applicant's case, ran counter
to this interest. The interference with the applicant's private and
family life was therefore justified.
On 19 July 1993 the applicant introduced a complaint to the
Constitutional Court against the Public Security Authority's decision.
He submitted that the Authority failed to take into account that he had
lived in Austria from 1972 to 1982, that his daughter and son-in-law
lived in Austria and that he ran the building cleaning company he
partly owned together with them.
On 28 September 1993 the Constitutional Court refused to
entertain the applicant's complaint of 19 July 1993 for lack of
prospect of success and referred the case to the Administrative Court.
The Constitutional Court also found that the applicant could at any
time request a residence permit from abroad and re-enter Austria
legally once he had complied with the deportation order.
On 25 November 1993 the Administrative Court dismissed the
applicant's complaint of 16 March 1993. It found that the District
Administrative Authority had acted correctly when it did not take the
applicant's private and family situation into account as this was not
provided for under Section 10 para. 1 subpara. 6 of the Aliens Act.
On 8 September 1994 the Administrative Court dismissed his
complaint concerning the deportation order. The Administrative Court
found that the authorities had considered sufficiently the applicant's
private and family situation. However, in view of the fact that the
applicant had continued to stay illegally in Austria since
17 September 1990, the public interest in the applicant's removal from
Austria prevailed over his personal interests.
On 6 December 1994 the applicant was deported to Yugoslavia.
B. Relevant domestic law
Section 10 para. 1 subpara. 6 of the Aliens Act, Federal Law
Gazette No. 838/1992 (Fremdengesetz) provides that a residence permit
has to be refused if it would have to be issued immediately following
a tourist visa or following a stay in Austria for which no visa was
required. Thus, a residence permit can in practice only be obtained
through an Austrian Consulate abroad.
According to Section 17 para. 1 of the Aliens Act a deportation
order against an alien has to be issued if he is not staying lawfully
in Austria.
According to Section 19 of the Aliens Act, in cases in which a
deportation order could interfere with the alien's private and family
life, the authority must consider whether this interference is
necessary for the reasons set out in paragraph 2 of Article 8 of the
Convention.
In its decision of 1 July 1993, Collection of Decisions of the
Constitutional Court No. 13497/93, the Constitutional Court examined
the constitutionality of Section 10 para. 1 subpara. 6 of the Aliens
Act. It found that it was compatible with Article 8 of the Convention
that for certain groups of cases which normally would not give rise to
an issue under this provision of the Convention, the legislator did not
require the authority to take the private and family situation of the
person concerned into account. It had been the legislator's intention
to establish a system whereby an alien who wanted to stay in Austria
for a longer period should manifest this intention in advance in order
that the authorities could consider whether his stay was compatible
with the public interest. Furthermore, such a system did not hinder
family contacts with relatives of an alien living in Austria because
the alien could visit them on the basis of a tourist visa or without
any visa at all if a visa was not required. In case a residence permit
had been refused on the basis of Section 10 para. 1 subpara. 6 of the
Aliens Act the alien could subsequently request a residence permit from
abroad.
COMPLAINTS
The applicant complains under Article 8 of the Convention that
the refusal of the Austrian authorities to grant him a residence permit
violated his right to respect for his private and family life.
He submits that the residence permit had not been issued in
accordance with the law as required by paragraph 2 of Article 8 of the
Convention as the provisions on which the refusal was based entered
into force long time after he had arrived in Austria. At the time he
entered Austria he could not have been aware of the provisions on which
the refusal was later on based.
He submits further that in refusing a residence permit the
authorities had failed to take his long stay in Austria and his private
and family situation duly into account.
THE LAW
The applicant complains under Article 8 (Art. 8) of the
Convention that the refusal of the Austrian authorities to grant him
a residence permit violated his right to respect for his private and
family life.
Article 8 (Art. 8) of the Convention reads as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
"2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interest of national security, public safety
or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health and morals, or for the protection of the rights and
freedoms of others."
The Commission has repeatedly held that no right of an alien to
enter or to reside in a particular country, nor a right not to be
expelled from a particular country, is as such guaranteed by the
Convention (see No. 12461/86, Dec. 10.12.86, D.R. 51 pp. 258, 264).
However, in view of the right to respect for private and family life
ensured by Article 8 (Art. 8) of the convention, the exclusion of a
person from a country in which his immediate family resides may raise
an issue under this provision of the Convention (see Eur. Court H.R.,
Moustaquim judgment of 18 February 1991, Series A no. 193, p. 18, para.
36; No. 13654/88, Dec. 8.9.88, D.R. 57 pp. 287, 289).
The question whether or not there is family life is essentially
a question of fact, depending on the real existence in practice of
close personal ties. Relationships between adults do not necessarily
attract the protection of Article 8 (Art. 8) of the Convention without
further elements of dependency, involving more than the normal
emotional ties (see No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).
The Commission recalls further that an applicant can only claim
to be a victim of an alleged violation of Article 3 (Art. 3) of the
Convention, or, as in the instant case, of Article 8, within the
meaning of Article 25 para. 1 (Art. 25-1) if an expulsion order has
been made against him, the mere refusal of a residence permit not being
sufficient to meet this requirement (Eur. Court H.R., Vijayanathan and
Pusparajah judgment of 27 August 1992, Series A no. 241-B, p. 87,
para. 46).
The Commission therefore finds that it has to examine whether the
deportation order issued against the applicant violated his rights
under Article 8 (Art. 8) of the Convention.
In the present case the applicant has lived in Austria from 1972
to 1982 and arrived again in Austria in June 1990. There is no
indication in the applicant's submissions that his daughter, who is an
adult, married and a partner in a building cleaning company she owns
together with her husband and the applicant, is dependent on him.
Furthermore, his wife is living in Yugoslavia.
The Commission further observes that the District Administrative
Authority issued a deportation order against the applicant as it noted
that his stay in Austria since September 1990 was unlawful and in
particular that the applicant had waited for more than two years before
he tried to regularise his stay. It also found that the applicant was
not strongly integrated in Austria and that his family ties to his
country of origin were stronger.
The Commission finds therefore that there are no elements
concerning respect for family or private life which in this case
outweigh the valid considerations relating to proper enforcement of
immigration controls. Accordingly, the applicant's removal does not
exhibit a lack of respect for the applicant's right to respect for
family or private life as guaranteed by Article 8 para. 1 (Art. 8-1)
of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy