AS TO THE ADMISSIBILITY OF
Application No. 30079/96
by J. O.
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 26 June 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 17 November 1995
by J. O. against Austria and registered on 5 February 1996 under file
No. 30079/96;
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 applicant, born in 1953, is a citizen of former Yugoslavia
and resides in Vienna. Before the Commission she is represented by
Mr. W. Berger, Mrs. C. Kolbitsch, Mr. H. Vana and Mrs. G. Vana-
Kowarzik, lawyers practising in Vienna.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant arrived in Austria in 1971 where she has been
living ever since. One of the applicant's sisters is living in
Austria, while her mother and another sister are living in Yugoslavia.
On 22 May 1991 a Court of Assizes (Geschworenengericht) at the
Vienna Regional Court convicted the applicant of having attempted to
murder her husband and sentenced her to eleven years' imprisonment.
It appears that upon appeal the sentence was reduced to eight years'
imprisonment. The applicant has not submitted a copy of the appeal
judgment.
On 27 May 1994 the Vienna Federal Police Authority
(Bundespolizeidirektion) issued a residence prohibition under Section
18 para. 2 (1) of the Aliens Act (Fremdengesetz) against the applicant.
According to this provision a residence prohibition has to be issued
against a person who has been sentenced to a term of imprisonment
exceeding three months. The Authority noted the applicant's above
conviction and that she had been released from prison after having
served four years of her sentence. The Authority found that in view
of the serious crime the applicant had committed, the issuing of a
residence prohibition was necessary in the public interest, in
particular for the prevention of crime. As regards the applicant's
private situation the Authority noted that it had heard her husband who
had stated that divorce proceedings had been instituted and that he
still felt threatened by his wife. The Authority found that for these
reasons her marriage could not be taken into account when assessing her
interest in staying in Austria. Although the applicant had arrived in
Austria in 1971 and had developed personal links to Austria, her
private interests in staying were outweighed by the public interest in
issuing the residence prohibition.
On 30 June 1994 the applicant appealed. She submitted that the
authority had not sufficiently taken her private and family situation
into account. She had a son, born in 1973, who was living in Austria
and she was the partner in a private company which was running a
restaurant in Vienna.
On 19 October 1994 the Vienna Public Security Authority
(Sicherheitsdirektion) dismissed the applicant's appeal. The Authority
found that the Federal Police Authority had correctly weighed the
applicant's private and family situation against the public interest
and that the further arguments adduced by the applicant could not
significantly change the result in her favour.
On 1 February 1995 the Administrative Court
(Verwaltungsgerichtshof) dismissed the applicant's complaint against
the Public Security Authority's decision.
COMPLAINTS
The applicant complains that the residence prohibition imposed
on her violated her right to respect form her private and family life
as protected by Article 8 of the Convention.
THE LAW
The applicant complains that the residence prohibition imposed
on her violated her right to respect for her private and family life
as protected by Article 8 (Art. 8) of the Convention.
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 interests
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 or morals, or for the protection of the
rights and freedoms of others."
The Commission recalls 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 of whether or not there is a family life for the
purpose of Article 8 (Art. 8) of the Convention is essentially a
question of fact, depending on the real existence in practice of close
personal ties (see No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).
In the present case, the applicant, who arrived in Austria at the
age of eighteen years, was convicted for having attempted to murder her
husband and was sentenced to a term of imprisonment of eight years.
Her husband had instituted divorce proceedings against her. The
applicant's son, born in 1973, is adult. There is also a sister of the
applicant living in Austria but the applicant has not specified the
relation she entertains with her. Furthermore, the applicant has
family links to her place of origin where her mother and another sister
are still living.
The Commission further observes that the Federal Police Authority
issued a residence prohibition against the applicant as it found that
in view of the severe prison sentence imposed on her, her further stay
in Austria was contrary to the public interest.
The Commission finds therefore that there are no elements
concerning respect for family or private life which in this case
outweighed the authorities' valid concerns of public interest.
Accordingly, the residence prohibition imposed on the applicant 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