Communicated on 17 April 2014
FIRST SECTION
Application no. 33072/10
Pashk SHALA
against Austria
lodged on 8 June 2010
STATEMENT OF FACTS
The applicant, Mr Pashk Shala, is a Kosovar national, who was born in 1963 in Gjakove and currently lives in Kosovo. He is represented before the Court by his daughter Ms T. Krasniqi, who lives in in Neudörfl.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In November 1989 the applicant left the province of Kosovo and entered Austria. In 1991 he lodged his first asylum application, which was dismissed by the Upper Austria Security Authority (Sicherheitsdirektion Oberösterreich). From 1991 at the latest the applicant had his permanent residence in Austria. He held a residency permit for some time, which was later withdrawn because of his criminal convictions. Apart from the periods he spent in prison, he lived together with his wife and his five children (born in 1987, 1988, 1990, 1994 and 1996), who are all Austrian citizens. His brother also holds Austrian citizenship and lives in Austria. He used to travel to Kosovo once a year to visit his parents, but according to his statements did not visit Kosovo anymore after 2001.
On 24 June 2003 the Graz Regional Criminal Court (Landesgericht für Strafsachen Graz) convicted the applicant for drug trafficking in large amounts as a member of a joint criminal enterprise and sentenced him to three years’ imprisonment.
On 12 July 2004 the Neunkirchen District Administrative Authority (Bezirkshauptmannschaft Neunkirchen) issued a ten-year exclusion order on the applicant. His appeal against the order was dismissed on 31 August 2004 by the Lower Austria Security Authority (Sicherheitsdirektion Niederösterreich). The Administrative Court dismissed the appeal against this decision on 23 November 2004.
An application to have declared that an expulsion to Kosovo was inadmissible was dismissed by the District Administrative Authority on 22 November 2004. The appeal was dismissed by the Security Authority on 29 December 2004. The Administrative Court dismissed the complaint on 31 March 2008.
On 9 February 2005, while serving the prison sentence, the applicant lodged a second asylum application. He stated that he applied for asylum because he had nowhere else to go. His whole family lived in Austria. He claimed that he never had supported the UCK except for two money transfers of 200 Euros each. Further, he contended that he was Christian and therefore ran risk of being suppressed by the Muslim majority in Kosovo.
The application was rejected by the Federal Asylum Office on 28 February 2005. On 8 March 2005 he lodged an appeal.
On 16 January 2009 the Wiener Neustadt Regional Court (Landesgericht) convicted the applicant for aggravated threat and was sentenced to one month imprisonment, suspended on a probationary period of three years.
On 22 September 2009 the Asylum Court held an oral hearing concerning the asylum application lodged in 2005.
On 15 October 2009 the applicant was convicted for attempted robbery and sentenced to eighteen months’ imprisonment.
On 27 October 2009 it dismissed the application pursuant to section 7 of the Asylum Act (Asylgesetz) and ordered the expulsion of the applicant from Austrian territory according to section 8 § 2 of the Asylum Act. The Asylum Court found that the asylum-relevant flight reasons he had brought forward were not convincing. It was not credible that a verbal dispute he had with UCK-members in 2001, as the applicant had claimed, caused him such fear that he did not dare to return to Kosovo, especially in the light that the UCK had dissolved in 1999. Concerning the applicant’s family life in Austria, the Asylum Court acknowledged that the decision on expulsion interfered with the applicant’s right to respect of his private and family life, but referred to the criminal conviction of 16 January 2009, holding that his recurrent criminal behaviour outweighed his interest in remaining in the country. It further quoted the Administrative Court’s decision of 23 November 2004 and held that an all-encompassing balancing exercise under Article 8 had already been conducted in the context of these proceedings, in which a ten-year exclusion order had been imposed on the applicant. It did not find that the applicant’s integration had further deepened since. He had not been able to integrate in the labour market; two of his children had attained full age and did not live at home anymore. After the exclusion order was issued in 2004, the applicant had only been allowed to remain in the country because of his new asylum application, which however turned out to be unfounded. Lastly, the Asylum Court noted that criminal proceedings were currently pending against the applicant. He had confessed having been involved in an attempted handbag robbery on 8 April 2009 as the driver of the getaway car. Also, he was suspected of the possession of an illegal hand fire weapon. Taking these facts into consideration, the Asylum Court concluded that the applicant had repeatedly shown by his criminal behaviour that he still posed a threat to public safety, which is why the interests of the state outweighed his interest in his private and family life. The criminal conviction of 15 October 2009 was not taken into account by the Asylum Court in its reasoning; it only noted that proceedings were pending.
On 27 April 2010 the Constitutional Court refused to deal with the applicant’s complaint due to lack of prospects of success. The decision was served on the applicant’s counsel on 3 May 2010.
On 4 June 2010 the applicant was taken into detention pending deportation. On 22 June 2010 he was expelled to Kosovo. His wife and children remained in Austria.
B. Relevant domestic law
The relevant sections of the Asylum Act 1997 as amended in 2003, which were in force at the time of the asylum application of the applicant, read as follows:
Section 7
The authority has to grant asylum to asylum seekers upon their application by decision, if it is credible, that they are under the threat of persecution (pursuant to Article 1 section A § 1 of the Geneva Convention on the Status of Refugees) in their country of origin, and none of the reasons for cessation or exclusion under Article 1 section C or F of the Geneva Convention is imminent.
Section 8
(1) If an asylum application is to be dismissed, the authority has to determine upon its own motion by decision, whether the refoulement, return or expulsion of aliens to their country of origin is permitted (section 57 of the Aliens Act); that decision shall be connected with the dismissal of the asylum application.
(2) If an asylum application is to be dismissed and the assessment under subsection 1 showed that the refoulement, return or expulsion of the alien to his or her country of origin is permitted, the authority has to connect that decision with an expulsion.
COMPLAINT
The applicant complains under Article 8 of the Convention that his expulsion violated his right to respect of his private and family life.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to respect for his private and family life, contrary to Article 8 of the Convention?
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