Communicated on 10 June 2014

FIRST SECTION

Application no. 41697/12 Agron KRASNIQI against Austria lodged on 4 July 2012

STATEMENT OF FACTS

The applicant, Mr Agron Krasniqi , is a Kosovar [1] national, who was born in 1974 in Gjakove and currently lives in Kosovo . He is represented before the Court by Mr W.L. Weh , a lawyer practising in Bregenz .

A. The circumstances of the case

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

The applicant entered Austria in 1994 when he was 19 years old and lodged an asylum claim, which was dismissed. At an unspecified date he was issued a five year exclusion order and in 1997 voluntarily returned to Kosovo. On 1 July 1998 he lodged a fresh asylum claim in Austria, this time together with his wife and child. The asylum claim was dismissed on 12 August 1998, but they were awarded subsidiary protection and received a temporary residence permit.

The applicant ’ s criminal record shows nine convictions:

1) On 2 March 2003 the Dornbirn District court convicted the applicant of bodily harm and sentenced him to pay a fine of € 350, partly suspended on probation.

2) On 29 August 2003, the Feldkirch Regional Court convicted him of bodily harm. He was again sentenced to pay a fine, suspended on probation.

3) On 3 October 2003 he was convicted by the same court of burglary and sentenced to twelve months ’ imprisonment (eight and a half of which on probation) .

4) On 26 July 2004 he was convicted by the same court of having participated in a brawl, for which he was sentenced to pay a fine of € 720.

5) On 17 January 2006 he was convicted by the Dornbirn Regional Court of bodily harm and se ntenced to pay a fine of € 600.

6) On 13 March 2007, the applicant was convicted by the Feldkirch Regional Court of drug offences and aggravated threat and was sentenced to 10 months ’ imprisonment. The suspension of the eight and a half months imprisonment of 2003 was revoked.

7) On 21 January 2010 he was convicted by the Dornbirn Regional Court of the consumption of illegal substances and sentenced to pay a fine of € 400.

8) On 12 May 2010 the Bregenz District Court convicted the applicant of attempted bodily harm and endangering the safety of others and sentenced him to pay a fine.

9) On 2 August 2012 he was convicted by the Feldkirch Regional Court of aggravated threat and sentenced to seven months ’ imprisonment.

On 16 November 2007, following his first conviction for drug offences, the applicant was issued a 10 year exclusion order by the Dornbirn District Administrative Authority ( Bezirks ­ hauptmannschaft ) because of his criminal convictions . The Vorarlberg Security Authority ( Sicherheit sd irektion ) confirmed the ban by decision of 5 November 2007. He did not appeal against that decision.

On 7 April 2010 the Innsbruck Federal Asylum Office ( Bundesasylamt ) conducted an interview with the applicant on the occasion of proceedings to withdraw his subsidiary protection status. The applicant made the following statements concerning his living situation in Austria: He had four children, born in 1997, 1999, 2000 and 2006 respectively; three of them with his wife, one outside the marriage with an Austrian citizen. His parents, his three siblings and their spouses and children all lived in Dornbirn . His parents and his older brother were recognized refugees. The applicant and his parents lived in the same house. He was working as a maintenance man and translator for Albanian and German; his wife was also working. Both had a regular income. His father still owned some land and three shops in Kosovo, which were run by relatives. In case he had to return to Kosovo, he would not know what to do there or where to go. He had a bad feeling about returning, but did not fear any repression. The security situation was bad, and the views of society were primitive. His wife and children would not have to fear any problems upon return to Kosovo, and would probably join him if he was expelled. He would however prefer to stay in Austria, where his children went to school.

On 17 May 2010, the Asylum Office withdrew the applicant ’ s subsidiary protection status pursuant to section 9 sub-section 1 of the Asylum Act. It found that there was no longer a risk of a violation of the applicant ’ s rights under Article 2 or 3 of the Convention if he was to return to Kosovo, and declared his expulsion admissible. Quoting relevant international sources, it explained that the security situation in Kosovo had significantly improved in recent years and was now considered to be stable. There was no threat by the UCK anymore, which the applicant had alleged when applying for asylum in the first place. Turning to the applicant ’ s rights under Article 8, the Asylum Office acknowledged the intensity of his private and family life in Austria. It referred however to his numerous convictions for crimes against life and limb as well as property, and concluded that the public interest in his expulsion outweighed his personal interest in remaining in the country. The Asylum Office specifically mentioned the two convictions for drug offences in 2007 and 2010, which it considered to be particularly serious. Further, it held that the applicant still had ties with Kosovo, because he grew up there, spoke the language, and was physically capable of working in order to earn a living. His father still owned some land and three shops in Kosovo, so it could be assumed that he could find work there. Given that the applicant ’ s wife had her own income, the Asylum Office further assumed that she would be able to take care of the needs of the family, and that the applicant could pay alimony from Kosovo.

On 27 June 2011 the Asylum Court confirmed the Asylum Office ’ s decision in the relevant parts. It held that the according to section 19 (3) in conjunction with section 37 (1) of the Criminal Code, the fines the applicant had received for his criminal convictions (1460 daily rates in total) amounted to almost 24 months ’ imprisonment. The prison sentences he had received amounted to 22 months (at the time of the decision). The Asylum Court concluded that even though the applicant ’ s private and family life in Austria was deserving protection beyond doubt, the public interest in his expulsion in order to prevent crime outweighed his personal interest in remaining in the country. He had reoffended even after he was issued the exclusion order, a fact which did not speak in his favour. Also, he could re ‑ apply for a residence permit after the exclusion order would expire in 2017.

On 14 December 2011, served on 9 January 2012, the Constitutional Court refused dealing with the complaint.

On 4 January 2013 the applicant was expelled to Kosovo.

The applicant submitted that he is in contact with his family via Skype. They speak several times per week over the phone. He does not currently have contact with his daughter born outside the marriage and does not pay alimony for her anymore because he does not have an income.

B. Relevant domestic law

Section 8 of the Asylum Act 2005

(1) The status of subsidiary protection is to be granted to an alien,

1. who has applied for international protection in Austria, if this application was dismissed in respect of the granting of the status of a recognized refugee or

2. whose status as a recognized refugee was withdrawn,

if the refoulement , return or expulsion of the alien to his country of origin constituted a real risk of a violation of Articles 2 or 3 or Protocols No. 6 or 13 of the European Convention on Human Rights, or a serious threat to his life or physical integrity as a civilian as a consequence of arbitrary violence in the framework of an international or internal conflict.

(2 ) ...

Section 9 of the Asylum Act 2005

The status of subsidiary protection must be withdrawn from an alien, if

(1) the requirements for the granting of subsidiary protection (section 8 sub-section 1) are not or no longer given.

(2 ) ...

Section 37 of the Criminal Code – Imposition of fines instead of prison sentences

(1) If for a criminal act there is no stricter punishment than five years imprisonment, even if in conjunction with a fine, a fine of not more than 360 daily rates is to be imposed instead of imprisonment of no more than six months, if the punishment of imprisonment is not deemed to be necessary in order to deter the perpetrator from committing further punishable acts or to counteract the commission of criminal acts by others.

(2) ...

Section 19 of the Criminal Code – Fines

(1) The fine shall be measured in daily rates. It must amount to a minimum of two daily rates.

(2) The daily rate is to be calculated according to the personal circumstances and the economic position of the offender at the time of the judgment of first instance. However, the minimum daily rate is 4 Euros, and the maximum is 5,000 Euros.

(3) If the payment of a fine cannot be enforced, imprisonment for failure to pay a fine shall be imposed. One day of imprisonment amounts to two daily rates.

COMPLAINT

The applicant complains under Article 8 of the Convention that his expulsion violated his right to respect of his private and family life .

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to respect for his private and family life , contrary to Article 8 of the Convention?

[1] All references to Kosovo, whether the territory, institutions or population, in this text shall be understood in full compliance with United Nation’s Security Council Resolution 1244 and without prejudice to the status of Kosovo.