Lexploria

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

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MARTINOVIC v. AUSTRIA

MARTINOVIC v. AUSTRIA

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