Lexploria

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

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STETTNER v. AUSTRIA

STETTNER v. AUSTRIA

LEXI