AS TO THE ADMISSIBILITY OF
Application No. 28949/95
by Zoran MARTINOVIC
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
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 August 1995 by
Zoran MARTINOVIC against Austria and registered on 19 October 1995
under file No. 28949/95;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 12 March 1996 and the observations in reply submitted by
the applicant on 1 April 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of former Yugoslavia, born in 1972 and
residing in Lauterach (Austria). Before the Commission he is
represented by Mr. H. Lumper, a lawyer practising in Bregenz.
The facts of the case, as submitted by the parties, may be
summarised as follows.
On 20 November 1992 the Bregenz District Court (Bezirksgericht)
convicted the applicant of having negligently caused bodily harm and
sentenced him to a fine of 60 daily rates of ATS 150 each. On
29 July 1993 the Bregenz District Court convicted the applicant of
having caused bodily harm with intent and sentenced him to a fine of
40 daily rates of ATS 180 each.
On 26 November 1993 the Court of Assizes (Geschwornengericht) at
the Feldkirch Regional Court (Landesgericht) convicted the applicant
and three co-accused of aggravated robbery (schwerer Raub). The
applicant was sentenced to one year of imprisonment.
On 10 February 1994 the Innsbruck Court of Appeal
(Oberlandesgericht) dismissed the applicant's appeal against the
sentence but granted the appeal of the Public Prosecutor and increased
the applicant's sentence to two years' imprisonment. The Court of
Appeal found that the Regional Court had failed to take into
consideration as aggravating circumstances the fact that the robbery
was committed by a gang of six persons and that they were armed, inter
alia, with a pistol loaded with live ammunition.
On 26 May 1994 the Bregenz District Administrative Authority
(Bezirkshauptmannschaft) issued a residence prohibition for an
indefinite period against the applicant under Section 18 para 2 (1) of
the Aliens Act (Fremdengesetz). The District Authority noted that the
applicant was convicted of aggravated robbery which was a serious
crime. Therefore a residence prohibition had to be imposed on him in
the public interest. As regards the applicant's private and family
situation the Authority noted that the applicant was born in Austria
and had been living there ever since. It further noted that he had a
son, born in July 1991 with A.D., an Austrian citizen and that the
applicant's parents and other relatives were living in Austria.
However, on balance the applicant's personal situation did not outweigh
the public interest in imposing a residence prohibition on him.
On 6 June 1994 the applicant, represented by counsel, appealed.
He submitted that the authority did not sufficiently take into account
his private and family situation which would militate against his
expulsion. In this respect he submitted further that his new fiancee,
K.H., was also an Austrian citizen and that they intended to marry.
He was not familiar with the situation in Serbia and Montenegro and
only spoke little Serbian.
On 27 September 1994 the Vorarlberg Federal Public Security
Authority (Sicherheitsdirektion) dismissed the appeal.
On 20 October 1994 the applicant introduced a complaint with the
Administrative Court (Verwaltungsgerichtshof). With regard to his
private and family situation he submitted that he had meanwhile
married Ms. K.H.
On 28 June 1995 the Administrative Court dismissed the
applicant's complaint. It found that the administrative authorities
had correctly considered the applicant's private situation and balanced
it against the public interest.
The applicant did not file a complaint with the Constitutional
Court (Verfassungsgerichtshof).
It appears that on 21 September 1995 the applicant left Austria
and is presently living in Trieste (Italy). According to the
Government his wife followed him to Trieste. According to the
applicant his wife remained in Austria but is visiting him in Italy
from time to time.
COMPLAINTS
The applicant complains that the residence prohibition imposed
on him violates his right to respect for his private and family life
as guaranteed by Article 8 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 30 August 1995 and registered
on 19 October 1995.
On 29 November 1995 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
12 March 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 1 April 1996.
THE LAW
The applicant complains that the residence prohibition imposed
on him violates his right to respect for his private and family life
as guaranteed 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 Government submit that the applicant has failed to exhaust
domestic remedies as required by Article 26 (Art. 26) of the
Convention, since he did not file a complaint with the Constitutional
Court against the residence prohibition. Such a complaint is an
effective remedy, as under the Federal Constitution the Constitutional
Court is competent to decide on complaints alleging that an
administrative decision has infringed the constitutional rights of the
person concerned. Since the Convention has been incorporated into the
Austrian legal order at the level of the Federal Constitution, the
applicant could and should have complained before the Constitutional
Court about a violation of his rights under Article 8 (Art. 8) of the
Convention. The Government, in this respect, refer to a decision of
the Constitutional Court of 16 March 1995 in which the latter had
quashed a decision by an administrative authority by which a residence
permit had been refused as it considered this decision to be contrary
to Article 8 (Art. 8) of the Convention.
The Government further submit that the imposition of a residence
prohibition on the applicant was justified under Article 8 para. 2
(Art. 8-2) of the Convention. The residence prohibition was imposed
on the applicant for a serious criminal offence, namely aggravated
robbery and the Austrian courts found in particular that the robbery
had been committed by a gang and with the use of a loaded weapon.
Furthermore, prior to the above conviction the applicant had already
been convicted twice of having caused bodily harm. This shows that the
applicant's criminal behaviour had become more and more violent. The
Austrian authorities carefully evaluated and balanced the public
interest in imposing a residence prohibition on the applicant against
his private interests and in that assessment his serious offence
carried considerable weight.
As regards the applicant's family life and the fact that he is
married to an Austrian citizen, the Government submit that the
applicant's wife could follow him abroad, which is confirmed by the
fact that the applicant has left Austria with his wife.
This is disputed by the applicant. He submits that his complaint
to the Administrative Court was a proper remedy and the Administrative
Court also found itself competent to consider the applicant's case.
The applicant submits further that the Austrian authorities have
not properly weighed the public interest against his private interest.
The authorities should have given more weight to his strong links to
Austria, in particular that he was born there, that his relatives were
living there and that his wife was Austrian. Moreover his wife is
pregnant and does not speak Serbo-Croat. It was not true that she had
followed him to Italy, rather she is visiting him there from time to
time.
As regards the seriousness of his criminal convictions, the
applicant submits that his conviction by the Bregenz District Court of
20 November 1992 concerned a traffic accident. Besides that conviction
he was convicted only two other times of criminal offences. Therefore
the Government's allegation that he had been convicted of numerous and
serious offences appeared exaggerated.
The Commission is not required to decide whether or not the facts
alleged by the applicant disclose any appearance of a violation of
Article 8 (Art. 8) of the Convention, as under Article 26 (Art. 26) of
the Convention, it may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law.
The Commission recalls that the obligation to exhaust domestic
remedies requires normal use of remedies which are effective,
sufficient and available (No. 12518/86, Dec. 4.10.89, D.R. 62 p. 189;
Nos. 18926/91, 19777/92, Dec. 30.8.93, D.R. 75 p. 179). The burden of
proving the existence of effective and sufficient remedies lies upon
the State invoking the rule (No. 12686/87, Dec. 3.10.90, D.R. 66
p. 105).
The Commission notes that the applicant did not file a complaint
with the Constitutional Court against the residence prohibition and
that he has not explained why he did not do so.
Having regard to the fact that under Austrian law the Convention
is part of the domestic legal order, that the applicant could therefore
have relied on Article 8 (Art. 8) of the Convention before the
Constitutional Court and that this court could have quashed the
residence prohibition if it would have considered it contrary to
Article 8 (Art. 8) of the Convention, the Commission finds that a
complaint to the Constitutional Court, in the circumstances of the
present case, has to be considered an effective remedy for the purpose
of Article 26 (Art. 26) of the Convention.
Furthermore, an examination of the case does not disclose the
existence of any special circumstances which might have absolved the
applicant from compliance with the requirement of exhaustion of
domestic remedies.
It follows that the applicant has failed to comply with the
requirement of exhaustion of domestic remedies under Article 26
(Art. 26) of the Convention.
Accordingly the application must be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy