AS TO THE ADMISSIBILITY OF
Application No. 26609/95
by Felicia ONYEGBULE
against Austria
The European Commission of Human Rights sitting in private on
16 October 1995, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
C.L. ROZAKIS
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 27 February 1995
by Felicia ONYEGBULE against Austria and registered on 2 March 1995
under file No. 26609/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 2 May 1995 and the observations in reply submitted by the
applicant on 21 June 1995;
Having deliberated;
Decides as follows:
THE FACTS
The facts, as they have been submitted by the parties, may be
summarised as follows.
The applicant, born in 1972, is a national of Nigeria, who is
currently residing in Vienna. Before the Commission she is represented
by Mr. J. Unterweger, a lawyer practising in Vienna.
A. Particular circumstances of the case
In December 1990 the applicant got married in Nigeria. Her
husband is also a Nigerian national, and has been lawfully resident in
Austria since 1989.
On 27 September 1991 the applicant came to Austria. She was
travelling on a Nigerian passport, giving her maiden name. She submits
that she used this passport as it would have taken a very long time to
have the name changed in Nigeria. The passport contained an entry visa
by the Austrian embassy in Lagos. Subsequently, on 17 October 1991, the
Vienna Federal Police Authority (Bundespolizeidirektion) upon
presentation of the said passport, granted the applicant a further visa
(Sichtvermerk). On 14 January 1992 the applicant presented a
translation of her marriage certificate to the Federal Police Authority
and was again granted a visa. The applicant did not apply for asylum.
On 27 January 1992 the applicant gave birth to a son.
On 25 November 1992 the Vienna District Criminal Court (Bezirks-
gericht für Strafsachen) convicted the applicant of attempted theft and
imposed a fine of AS 900 on her.
On 17 March 1993 the Vienna Regional Criminal Court (Landes-
gericht) convicted the applicant of having used a forged document and
sentenced her to four months' imprisonment, suspended on probation. The
Court found that the entry visa in the applicant's passport was a
falsification, which she had knowingly used when she came to Austria
in 1991. Following appeal proceedings before the Vienna Court of Appeal
(Oberlandesgericht), this judgment became final on 25 August 1993.
On 9 February 1994 the Vienna Inner City District Court convicted
the applicant of attempted theft and imposed a fine of AS 1,500 on her.
On 5 May 1994 the Vienna Federal Police Authority (Bundespolizei-
direktion), referring to S. 18 para. 1 subpara. 1 and para. 2
subpara. 6 of the Austrian Aliens Act (Fremdengesetz), imposed a
residence ban against the applicant valid for ten years. The Federal
Police Authority noted the applicant's convictions, in particular her
conviction in August 1993 of having used a forged document when she had
been sentenced to a suspended term of imprisonment. It followed that,
by using her passport with the falsified entry visa, she had made false
statements before an authority in order to be allowed to enter Austria.
Further, the Authority considered that she had failed to file details
as to her family relations in Austria which could outweigh the public
interest in public safety and the prevention of disorder.
On 14 September 1994 the Vienna Public Security Authority
(Sicherheitsdirektion) dismissed the applicant's appeal. The Authority
noted that the applicant had twice been convicted, namely in 1992 and
1994, for attempted theft and sentenced to pay a fine. Further, she had
been convicted of having used a forged document and been sentenced to
four months' imprisonment suspended on probation. Thus, also the
requirements for issuing a residence ban under S. 18 para. 2 subpara. 1
were met. The Public Security Authority, referring to Article 8 para. 2
of the Convention, found that the residence ban pursued the aim of the
prevention of disorder and crime, as well as the protection of the
rights of others. It considered that the residence ban constituted a
serious interference with the applicant's right to respect for her
family life. However, taking into account that the spouses had
unlawfully arranged for their family life in Austria, and that the
applicant had repeatedly committed offences in Austria, the residence
ban appeared necessary for the aims pursued.
On 24 November 1994 the Vienna Federal Police Directorate ordered
that the applicant be taken into detention with a view to her
expulsion.
On 1 December 1994 the Administrative Court (Verwaltungsgerichts-
hof) dismissed the applicant's complaint concerning the residence ban.
It found that her residence would endanger public order and security.
Thus, the residence ban against her was necessary for the prevention
of disorder or crime. This public interest outweighed her interest in
staying in Austria. Although she had strong family ties in Austria, she
had only been resident there for a short period and was not well
integrated.
On 19 December 1994 the applicant, who had her son with her, who
was then aged two years and eleven months, was taken into detention
with a view to her expulsion. Her son was separated from her and put
into a public children's home. After some days he was handed over to
the applicant's husband. In a file note dated 9 January 1995, the
competent authority noted that it was not envisaged to expel the
applicant's son. The applicant's husband and son both have residence
permits valid until October 1996.
On 29 December 1994 the Vienna Independent Administrative
Tribunal (Unabhängiger Verwaltungssenat) dismissed the applicant's
complaint about her detention with a view to her expulsion.
On 7 January 1995 officers of the Vienna Federal Police Authority
brought the applicant to Vienna airport in order to deport her to
Nigeria. In view of the applicant's resistance, the pilot refused to
take her on board and she was returned to the police prison.
On 12 January 1995 the applicant was released, as she was no
longer fit for detention, after being on a hunger strike for several
days.
B. Relevant domestic law
According to S. 18 para. 1 of the Aliens Act (Fremdengesetz), a
residence ban may be issued against an alien if there are reasonable
grounds for believing that his stay will disturb public order or
security (subpara. 1) or that it will be contrary to the public
interest, as provided for in Article 8 para. 2 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms
(subpara. 2).
Paragraph 2 of S. 18 illustrates cases in which "reasonable
grounds" within the meaning of para. 1 are given, e.g. if an alien has
been sentenced to more than three months' imprisonment by an Austrian
court, and this judgment has become legally effective (subpara. 1); or
if an alien makes false statements before an authority, relating to his
person, or the purpose or envisaged duration of his stay in Austria,
in order to be allowed to enter Austria or to obtain a residence permit
(subpara. 6).
COMPLAINTS
1. The applicant complains under Article 8 of the Convention that
the residence ban against her violates her right to respect for her
family life. She submits in particular that the residence ban is not
necessary in a democratic society within the meaning of Article 8
para. 2. In this context she argues that the convictions on which the
residence ban was based, concerned relatively minor offences and that
the authorities did not duly take her interest in remaining in Austria
into account.
2. The applicant complains under Article 3 of the Convention that
her expulsion to Nigeria would expose her to a risk of being tortured
or of being subjected to inhuman or degrading treatment. She submits
in particular that she would be persecuted by the moslem military
regime because she belongs to the Ibo people and is a christian. She
alleges that most of her family members have already been killed.
3. Further, the applicant submits that the separation from her son,
when she was taken into detention with a view to her expulsion, and the
fact that he was put in a children's home for some days, constituted
inhuman and degrading treatment within the meaning of Article 3 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 27 February 1995 and registered
on 2 March 1995.
On 3 March 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
2 May 1995. The applicant replied on 21 June 1995.
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention that the residence ban against her violates her right to
respect for her family life.
Article 8 (Art. 8), so far as relevant, reads as follows:
"1. Everyone has the right to respect for his private and
family life, ...
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 residence ban against the
applicant did not constitute an interference with her right to respect
for her family life. They submit in particular that the applicant's
husband and her son can be expected to follow her to Nigeria, as her
husband is also a Nigerian national and has only been residing in
Austria for some years and is, thus, not well integrated there. Their
son, although born in Austria, is only three years old. Further, the
Government argue that, if there was an interference, it was justified
under Article 8 para. 2 (Art. 8-2). In particular, the applicant
entered Austria illegally with a false entry visa, and was subsequently
convicted of having forged documents. Moreover, she was convicted twice
of attempted theft. Thus, the residence ban was necessary in the
interest of public safety and for the prevention of crime.
The applicant submits in particular that the contested residence
ban was not necessary within the meaning of Article 8 para. 2
(Art. 8-2). She argues that her husband, who has been living and
working in Austria since 1989, and her son, who was born there in 1992,
both have residence permits valid until October 1996. Moreover, she and
her family belong to the Ibo people, who are persecuted in Nigeria
because they are christians. Thus, her husband and son cannot be
expected to follow her to Nigeria. Further, the applicant submits that
her interest in remaining in Austria outweighs the public interest in
expelling her. She argues that she was only convicted of minor
offences. In particular, as regards the two convictions for attempted
theft, only fines were imposed. As regards the conviction for forging
documents the sentence to four months' imprisonment was suspended on
probation.
The Commission recalls that Contracting States have the right,
as a matter of well-established international law and subject to their
treaty obligations, to control the entry, residence and expulsion of
aliens (Eur. Court H.R., Vilvarajah and Others judgment of
30 October 1991, Series A no. 215, p. 34, para. 102). The Commission
further recalls that Article 8 (Art. 8) does not impose a general
obligation on the part of States to respect the choice by married
couples of the country of their matrimonial residence and to accept the
non-national spouse for settlement in that country. Rather, the State's
obligation to admit to its territory aliens who are relatives of
settled immigrants will vary according to the circumstances of the case
(Eur. Court H.R. Abdulaziz, Cabales and Balkandali judgment of
28 May 1985, Series A no. 94, p. 34, paras. 67-68).
In the present case the applicant has not shown that there were
any serious obstacles to establishing family life in her home country.
In particular, the applicant's husband, who is also a Nigerian
national, has only been living in Austria since 1989 and their son,
born in 1992, is still in pre-school age. Both of them only hold
temporary residence permits valid until October 1996. Moreover, the
Commission considers that the applicant failed to substantiate her
allegation that she and her family would risk persecution in Nigeria
on account of their christian faith.
In addition, the Commission notes that, according to the judgment
of the Vienna Regional Criminal Court, the applicant used a passport
containing a forged entry visa when coming to Austria. Further she used
this passport, when applying for a further visa to be allowed to stay.
Thus, she knew or could have known that she did not have a right to
reside in Austria on account of her marriage (see mutatis mutandis,
Abdulaziz, Cabales and Balkandali judgment loc. cit.).
In these circumstances, the Commission finds that the issuing of
a residence ban against the applicant did not constitute a lack of
respect for her family life.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains under Article 3 (Art. 3) of the
Convention that her expulsion to Nigeria would expose her to a risk of
being tortured or of being subjected to inhuman or degrading treatment.
She submits in particular that she would be persecuted by the moslem
military regime because she belongs to the Ibo people and is a
christian. She alleges that most of her family members have already
been killed.
Article 3 (Art. 3) reads as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission observes that the applicant did not provide any
evidence for her above allegations in the proceedings before the
Commission. Nor did she apply for asylum in Austria. In these
circumstances, the Commission finds that the applicant failed to show
substantial grounds for believing that she would face a real risk of
being subjected to torture or to inhuman or degrading treatment or
punishment if she was expelled to Nigeria (Vilvarajah and Others
judgment, loc. cit., para. 103).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant also complains that the separation from her son,
when she was taken into detention with a view to her expulsion, and the
fact that he was put in a children's home for some days, constituted
inhuman and degrading treatment within the meaning of Article 3
(Art. 3) of the Convention.
The Commission recalls that ill-treatment must attain a minimum
level of severity if it is to fall within the scope of Article 3
(Art. 3). The assessment of this minimum depends on all the
circumstances of the case, such as the nature and context of the
treatment, the manner and method of its execution, its duration, its
physical and mental effects, and in some instances, the sex, age and
state of health of the victim (Eur. Court H.R., Cruz Varas and Others
judgment of 20 March 1991, Series A no. 201, p. 31, para. 83).
The Commission finds that the treatment complained of, namely the
separation from her son, was carried out in the context of the
applicant's envisaged expulsion. There is no indication that it was not
carried out with the necessary diligence, her son being placed in a
public children's home until he was handed over to the applicant's
husband a few days later. Thus, the treatment complained of did not
reach the level of severity necessary for Article 3 (Art. 3) to be
applicable.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy