Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30079/96

by J. O.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 26 June 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 17 November 1995

by J. O. against Austria and registered on 5 February 1996 under file

No. 30079/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1953, is a citizen of former Yugoslavia

and resides in Vienna. Before the Commission she is represented by

Mr. W. Berger, Mrs. C. Kolbitsch, Mr. H. Vana and Mrs. G. Vana-

Kowarzik, lawyers practising in Vienna.

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

The applicant arrived in Austria in 1971 where she has been

living ever since. One of the applicant's sisters is living in

Austria, while her mother and another sister are living in Yugoslavia.

On 22 May 1991 a Court of Assizes (Geschworenengericht) at the

Vienna Regional Court convicted the applicant of having attempted to

murder her husband and sentenced her to eleven years' imprisonment.

It appears that upon appeal the sentence was reduced to eight years'

imprisonment. The applicant has not submitted a copy of the appeal

judgment.

On 27 May 1994 the Vienna Federal Police Authority

(Bundespolizeidirektion) issued a residence prohibition under Section

18 para. 2 (1) of the Aliens Act (Fremdengesetz) against the applicant.

According to this provision a residence prohibition has to be issued

against a person who has been sentenced to a term of imprisonment

exceeding three months. The Authority noted the applicant's above

conviction and that she had been released from prison after having

served four years of her sentence. The Authority found that in view

of the serious crime the applicant had committed, the issuing of a

residence prohibition was necessary in the public interest, in

particular for the prevention of crime. As regards the applicant's

private situation the Authority noted that it had heard her husband who

had stated that divorce proceedings had been instituted and that he

still felt threatened by his wife. The Authority found that for these

reasons her marriage could not be taken into account when assessing her

interest in staying in Austria. Although the applicant had arrived in

Austria in 1971 and had developed personal links to Austria, her

private interests in staying were outweighed by the public interest in

issuing the residence prohibition.

On 30 June 1994 the applicant appealed. She submitted that the

authority had not sufficiently taken her private and family situation

into account. She had a son, born in 1973, who was living in Austria

and she was the partner in a private company which was running a

restaurant in Vienna.

On 19 October 1994 the Vienna Public Security Authority

(Sicherheitsdirektion) dismissed the applicant's appeal. The Authority

found that the Federal Police Authority had correctly weighed the

applicant's private and family situation against the public interest

and that the further arguments adduced by the applicant could not

significantly change the result in her favour.

On 1 February 1995 the Administrative Court

(Verwaltungsgerichtshof) dismissed the applicant's complaint against

the Public Security Authority's decision.

COMPLAINTS

The applicant complains that the residence prohibition imposed

on her violated her right to respect form her private and family life

as protected by Article 8 of the Convention.

THE LAW

The applicant complains that the residence prohibition imposed

on her violated her right to respect for her private and family life

as protected 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 Commission recalls that no right of an alien to enter or to

reside in a particular country, nor a right not to be expelled from a

particular country, is as such guaranteed by the Convention (see No.

12461/86, dec. 10.12.86, D.R. 51 pp. 258, 264). However, in view of

the right to respect for private and family life ensured by Article 8

(Art. 8) of the Convention, the exclusion of a person from a country

in which his immediate family resides may raise an issue under this

provision of the Convention (see Eur. Court H.R., Moustaquim judgment

of 18 February 1991, series A no. 193, p. 18, para. 36; No. 13654/88,

Dec. 8.9.88, D.R. 57 pp. 287, 289).

The question of whether or not there is a family life for the

purpose of Article 8 (Art. 8) of the Convention is essentially a

question of fact, depending on the real existence in practice of close

personal ties (see No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).

In the present case, the applicant, who arrived in Austria at the

age of eighteen years, was convicted for having attempted to murder her

husband and was sentenced to a term of imprisonment of eight years.

Her husband had instituted divorce proceedings against her. The

applicant's son, born in 1973, is adult. There is also a sister of the

applicant living in Austria but the applicant has not specified the

relation she entertains with her. Furthermore, the applicant has

family links to her place of origin where her mother and another sister

are still living.

The Commission further observes that the Federal Police Authority

issued a residence prohibition against the applicant as it found that

in view of the severe prison sentence imposed on her, her further stay

in Austria was contrary to the public interest.

The Commission finds therefore that there are no elements

concerning respect for family or private life which in this case

outweighed the authorities' valid concerns of public interest.

Accordingly, the residence prohibition imposed on the applicant does

not exhibit a lack of respect for the applicant's right to respect for

family or private life as guaranteed by Article 8 para. 1 (art. 8-1)

of the Convention.

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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J.O. v. AUSTRIA

J.O. v. AUSTRIA

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