THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34891/97 by Hedwiga and Peter SCHOBER against Austria

The European Court of Human Rights ( Third Section ) sitting on 9 November 1999 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mr L. Loucaides, Mr P. KÅ«ris,

Mrs F. Tulkens, Mr W. Fuhrmann , Mr K. Traja, judges ,

and Mrs S. Dollé , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 October 1996 by Hedwiga and Peter SCHOBER against Austria and registered on 12 February 1997 under file no. 34891/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is a Slovakian national, born in 1973. The second applicant is an Austrian national, born in 1963. The first applicant is currently resident in Slovakia . The second applicant is currently resident in Germany .

The facts of the case, as submitted by the applicant s , may be summarised as follows.

In September 1993 the applicants married in Vienna , where they had established their common residence.

On 30 December 1993 the applicants were arrested and subsequently remanded in custody on suspicion of attempted blackmail and arson.

On 18 March 1994 the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) convicted the applicants of attempted aggravated blackmail and arson. It found that they had in November and December 1993 threatened a food store company with poisoning its goods and setting fire to or causing explosions in its shops unless the company paid them Austrian shillings (ATS) 3 or 3,5 million, respectively. Further, they had actually set fire to a number of the company's shops causing damage amounting to ATS 10 millions. The court sentenced the first applicant to fifteen months' imprisonment, of which ten months were suspended on probation, and the second applicant to three years' imprisonment of which two years were suspended on probation. In meting out the sentence the court considered that the second applicant was the main instigator of the crime, while the first applicant had only assisted him in a minor role in carrying out his plan.

On 13 June 1994 the Vienna Court of Appeal ( Oberlandesgericht ), upon the Public Prosecutor's appeal, increased the first applicant's sentence to three years' imprisonment and the second applicant's sentence to six years' imprisonment. It also ordered that the sentences were not to be suspended on probation.

On 24 February 1995 the Vienna Federal Police Authority ( Bundespolizeidirektion ), relying on section 18 §§ 1 and 2 (1) of the 1992 Aliens Act ( Fremdengesetz ), according to which a residence ban may be issued against an alien who has been sentenced to more than three months' imprisonment by a final judgment of a domestic court, issued a residence ban of unlimited duration against the first applicant. It noted that she had come to Austria in 1993 and that proceedings relating to her request for a residence permit were still pending. The authority acknowledged that the applicant had, despite the short duration of her stay in Austria, established close links to the country on account of her marriage with an Austrian national. However, having regard to the seriousness of the offences of which she had been convicted, her interest in staying in Austria was outweighed by the public interest in the prevention of crime.

On 2 August 1995 the Vienna Security Authority ( Sicherheitsdirektion ) dismissed the first applicant's appeal. It confirmed that the residence ban constituted an interference with the first applicant's private and family life, which was necessary for the prevention of crime and for the protection of the rights and freedoms of others. It had particular regard to the seriousness of the offences committed by the first applicant arguing that there was an evident public interest in preventing such crimes, which outweighed the serious consequences for the applicant's private and family life.

On 11 October 1995 the Constitutional Court ( Verfassungsgerichtshof ) refused to deal with the first applicant's complaint and referred the case to the Administrative Court ( Verwaltungsgerichtshof ).

On 22 December 1995 the first applicant was conditionally released from prison and immediately re-detained with a view to her expulsion. She was deported to Slovakia a week later.

On 8 February 1996 the Administrative Court dismissed the first applicant's complaint finding that the authorities had correctly weighed the different interests involved (served on 15 May 1996).

COMPLAINTS

1. The applicants complain under Articles 8 and 12 of the Convention that the residence ban against the first applicant violated their right to respect for their private and family life and their right to live together as a married couple. They consider in particular that the residence ban was disproportionate.

2. In addition, the second applicant complains under Articles 2 § 1 and 3 § 1 of Protocol No. 4 that the residence ban against his wife has the effect of forcing him either to renounce his marriage or to leave his country of origin.

THE LAW

1 . The applicants complain under Articles 8 and 12 of the Convention that the residence ban against the first applicant violated their right to respect for their private and family life and their right to live together as a married couple.

Even assuming that the applicants may be said to have complied with the requirements of Article 35 of the Convention concerning exhaustion of domestic remedies, the Court finds that their complaints are anyway manifestly ill-founded for the reasons set out below.

The Court will first examine the applicants' complaints under Article 8 of the Convention which 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 Court finds that the residence ban at issue constitutes an interference with the applicants' private and family life, which will be in breach of Article 8 unless it satisfies the conditions set out in the second paragraph of this Article.

The Court notes that the residence ban has a basis in domestic law, and served a legitimate aim, namely the prevention of disorder or crime.

The applicants mainly contest the necessity of the interference, claiming in particular that the issue of the residence ban was disproportionate to the legitimate aim pursued. They point out that the first applicant only played a minor role in the commission of the offences for which she and the second applicant were convicted, and that it is therefore unjustified to consider that the public interest requires her removal from Austria . They further allege that the residence ban also has force in Germany , where the second applicant is currently living.

The Court recalls that it is for the Contracting States to maintain public order in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens. For that purpose they are entitled to order the expulsion of such persons convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. The Court's task accordingly consists in ascertaining whether the issue of a residence ban against the first applicant struck a fair balance between the relevant interests, namely the applicants' right to respect for their private and family life, on the one hand, and the prevention of disorder and crime, on the other (see as a recent authority the Dalia v. France judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 91, § 52). In doing so, the Court will also bear in mind that Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence ( Abdulaziz , Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, p. 32, § 62).

As to the first applicant's ties with Austria , the Court notes that she had only entered Austria in 1993 at the age of twenty. When she married the second applicant in September 1993 she had not yet obtained a residence permit. She was arrested in December 1993. Thus, her stay in Austria outside prison was very brief and was seemingly not based on a valid residence entitlement. As to the offences committed by her, the Court finds that they are by their very nature serious crimes. Even if the domestic courts found that the second applicant was the main instigator of these crimes while the first applicant only played a minor role in contributing to their commission, they found it necessary to impose a term of imprisonment of considerable length on her. The Court further notes that the applicants have not shown that there are obstacles to establishing family life in Slovakia , the first applicant's country of origin.

In these circumstances, the Court considers that the residence ban against the first applicant cannot be regarded as disproportionate to the legitimate aim pursued. There is, thus, no appearance of a violation of Article 8 of the Convention.

The applicants also invoke Article 12 of the Convention, which reads as follows:

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

The Court notes that the contested residence ban did not affect the applicants' right to contract their marriage. Insofar as the right to marry and to found a family encompasses the right to live together (see the Abdulaziz , Cabales and Balkandali judgment, loc. cit.) the Court, having regard to its above considerations, finds that the complaint under Article 12 does not raise a separate issue.

It follows that this part of the application must be rejected as being manifestly ill ‑ founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

2. In addition, the second applicant complains under Articles 2 § 1 and 3 § 1 of Protocol No. 4 that the residence ban against his wife has the effect of forcing him either to renounce his marriage or to leave his country of origin.

Article 2 of Protocol No. 4, so far as relevant, reads as follows:

“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. ....

3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 3 § 1 of Protocol No. 4 reads as follows:

“No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.”

Even assuming that the residence ban against his wife constituted a de facto restriction on the second applicant's right to choose his residence within Austria under Article 2 of Protocol No. 4, the Court, recalling its considerations under Article 8 of the Convention finds that this restriction is in any case justified under the third paragraph of Article 2 of Protocol No. 4 (see also no. 8901/80, Dec. 16.10.80, D.R. 23, p. 237). Further, the Court finds that the complaint does not disclose any appearance of a violation of Article 3 § 1 of Protocol No. 4.

It follows that this part of the application must also be rejected as being manifestly ill ‑ founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza Registrar President