AS TO THE ADMISSIBILITY OF
Application No. 27096/95
by Josef STETTNER
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 10 September 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M. HION
Mr. R. NICOLINI
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 11 January 1995
by Josef STETTNER against Austria and registered on 24 April 1995 under
file No. 27096/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure
of the Commission;
- the observations submitted by the respondent Government on
4 February 1997 and the observations in reply submitted by the
applicant on 8 April 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1970 in Melbourne, is an Australian
national. In the proceedings before the Commission he is represented
by Mr. J. Unterweger, a lawyer practising in Vienna.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Since 1972 the applicant lived in Austria with his parents and
his siblings. Some members of the applicant's family are Austrian
nationals, while others are Australian nationals. They are all living
in Austria except one sister who is living in Hungary. Since 1974 the
applicant held a residence permit of unlimited duration.
On 29 September 1992 the Vienna Regional Criminal Court
(Landesgericht für Strafsachen) convicted the applicant of having
organised a gang and of aggravated robbery and sentenced him to four
years' imprisonment. The court found that the applicant, from summer
1990 until January 1991, together with his co-accused born in 1970 and
1972, and further accomplices prosecuted in separate proceedings, had
forced various victims to hand over small amounts of money or
cigarettes to them in that one gang member had requested the respective
item while the others had encircled the person concerned in a
threatening way. In one further instance, in July 1990, the applicant
had also threatened the victim with a knife. When fixing the sentence,
the court considered as mitigating circumstances that the applicant had
so far no criminal record, had admitted the offences and had committed
the offences as an adolescent, i.e. before completing the twenty-first
year of his life.
On 9 March 1993 the Vienna Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal.
On 21 September 1993 the Vienna Federal Police Authority
(Bundespolizeidirektion) issued a residence ban of unlimited duration
against the applicant. It referred to S. 18 paras. 1 and 2, subpara. 1
of the Aliens Act (Fremdengesetz) according to which a residence ban
is to be issued against an alien, if he has been sentenced to more than
three months' imprisonment by final judgment of a domestic court.
On 21 January 1994 the Vienna Public Security Authority
(Sicherheitsdirektion) dismissed the applicant's appeal. It noted that
the applicant had lived in Austria with his family since he was a small
child and found that the residence ban at issue constituted an
interference with his right to private and family life. However, it was
necessary to achieve the aims set out in Article 8 para. 2 of the
European Convention on Human Rights, namely for the prevention of
disorder and crime and for the protection of the rights of others. In
particular, the applicant had committed robberies as a gang member,
whereby, in one case, he had even threatened the victim with a knife.
Such offences could not be minimized, rather they were the first stages
of organised crime and required a determined reaction by the police
authorities. Therefore, the interest in issuing a residence ban against
the applicant prevailed over the applicant's interest in staying in
Austria. Given the seriousness of the offences there was also no
positive prognosis possible. Thus, the residence ban had to be of
unlimited duration.
On 18 March 1994 the Constitutional Court (Verfassungs-
gerichtshof) refused to entertain the applicant's complaint.
On 1 June 1994 the Administrative Court (Verwaltungsgerichtshof)
dismissed the applicant's complaint. It found that the Public Security
Authority had had due regard to the applicant's private and family
situation and had correctly assessed the interests involved when
issuing the residence ban against him. Further, the court found that
the applicant's submissions that he did not speak English and had no
friends or relatives in Australia were irrelevant as the residence ban
only prohibited his further stay in Austria, while it did not determine
to which country he would eventually be expelled.
The Administrative Court's decision was served on the applicant
on 12 July 1994.
On 29 September 1994 the Vienna Court of Appeal ordered the
applicant's conditional release. It found in particular that the
applicant had only been twenty years old at the time of the offences,
which were, though not to be minimized, typical cases of juvenile
delinquency. Further, the applicant's conduct in prison had been good
and he had received vocational training as a joiner. It also had regard
to the opinion of an expert and found that there were no specific
reasons to assume that the applicant would commit further offences upon
his release.
Following his release, the applicant was taken into detention
with a view to his expulsion. He requested not to be sent to Australia
but to Hungary as he speaks Hungarian and one of his sisters is living
there. He was granted a visa by the Hungarian embassy.
On 3 November 1994 the applicant was expelled to Hungary.
COMPLAINTS
The applicant complains under Article 8 of the Convention that
the residence ban against him and his expulsion violated his right to
respect for his private and family life. He contests the necessity of
these measures and submits in particular that he has grown up in
Austria and that his family except one sister is living there. Further,
he argues that he has completed his vocational training as a joiner
during his term of imprisonment and that he could stay with his
parents, whereas he has no ties, no professional training and no place
to live in his country of origin. Further he argues that he did not
have any criminal record prior to his conviction and that the offences,
which he committed at the age of twenty, were typical cases of juvenile
delinquency, a fact to which the Vienna Court of Appeal had regard when
ordering his conditional release.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 11 January 1995 and registered
on 24 April 1995.
On 16 October 1996 the Commission decided to communicate the
application.
The Government's written observations were submitted on
4 February 1997, after an extension of the time-limit fixed for that
purpose. The applicant replied on 8 April 1997.
THE LAW
The applicant complains under Article 8 (Art. 8) of the
Convention that the residence ban against him and his expulsion
violated his right to respect for his private and 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, referring to the case-law of the Convention
organs, submit that a possible interference with the applicant's right
to respect for his private and family life was in accordance with
Austrian law and necessary in a democratic society in the interests of
public safety and for the prevention of disorder and crime. They argue
in particular, that having regard to the gravity of the applicant's
offences, namely organising a gang and gang robbery which in one
instance involved the use of a knife, the issuing of a residence ban
and the expulsion of the applicant were proportionate. Further, they
point out that the applicant's submissions as regards the lack of links
with his country of origin, namely Australia, are irrelevant on the
ground that he has, upon his request, been expelled to Hungary, as he
speaks Hungarian and one of his sisters is living there.
The applicant contests the Government's view as regards the
necessity of the residence ban against him and his expulsion. He
maintains that he has been living in Austria with his family since the
age of two and that German is his mother tongue, while he has no family
or other ties in Australia and does not speak English. The applicant
further submits that he was only convicted once and that the offences
which he committed at the age of twenty where typical cases of juvenile
delinquency. Moreover, the Vienna Court of Appeal, in September 1994,
ordered his conditional release from prison. Having regard inter alia
to his good conduct in prison and the vocational training which he
received there, the Court found that there were no specific reasons to
assume that he would re-offend.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and of fact
under the Convention, the determination of which should depend on an
examination of the merits of the application. The Commission concludes
therefore, that the application is not manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No
other grounds for declaring it inadmissible have been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy