THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36757/97 
by Elvis JAKUPOVIC 
against Austria

The European Court of Human Rights (Third Section), sitting on 15 November 2001 as a Chamber composed of

Mr G. Ress, President
 Mr I. Cabral Barreto,

Mr L. Caflisch
 Mr R. Türmen
 Mr B. Zupančič
 Mrs H.S. Greve
 Mrs E. Steiner, judges
and  Mr  V. Berger, Section Registrar

Having regard to the above application introduced with the European Commission of Human Rights on 8 April 1997 and registered on 1 July 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a national of Bosnia-Herzegovina, born in 1979 and living at the time of the events in Vöcklabruck (Austria). He presently lives in Banova Jaruga (Croatia). He is represented before the Court by Mr F. Schwarzinger, a lawyer practising in Wels (Austria).

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

In February 1991 the applicant arrived in Austria together with his brother, born in 1985, and joined his mother who had already been living and working there. Subsequently his mother remarried. The applicant’s family now consists of his mother, his stepfather, his brother and two half sisters, born in 1993 and 1995.

On 14 January 1994 the Police Authorities filed a criminal complaint against the applicant on suspicion of burglary. On 14 March 1994 the Wels Regional Court (Landesgericht) provisionally discontinued the criminal proceedings and ordered the applicant to compensate the victims for the damage caused. On 11 May 1995 the Vöcklabruck District Administrative Authority issued a prohibition to possess arms (Waffenverbot) under the Weapons Act (Waffengesetz) against the applicant as he had, in April 1995, attacked several persons with an electroshock device. On 31 May 1995 the applicant was remanded in custody on suspicion of having committed some fifty burglaries. 

On 28 August 1995 the Wels Regional Court convicted the applicant of burglary and sentenced him to five months’ imprisonment, suspended for a probationary period of three years. On the same day the applicant was released from detention on remand.

On 28 September 1995 the Vöcklabruck District Administrative Authority (Bezirkshauptmannschaft) issued a ten year residence prohibition against the applicant. Having regard to the above events and in particular the applicant’s conviction, it found that his further stay in Austria was contrary to the public interest. These considerations were not outweighed by his family links in Austria. On 16 October 1995 the applicant, assisted by counsel, appealed against this decision. Relying on Article 8 of the Convention he submitted, inter alia, that the District Administrative Authority had failed to take sufficiently into account his private and family situation.

On 18 December 1995 the applicant was again remanded in custody on suspicion of having committed further burglaries in December 1995. On 26 February 1996 the Wels Regional Court again convicted the applicant of burglary and sentenced him to a further term of imprisonment of ten weeks, suspended for a probationary period of three years. On the same day the applicant was released from detention on remand.

On 2 May 1996 the Upper Austria Public Security Authority (Sicherheitsdirektion) dismissed the applicant’s appeal against the District Administrative Authority’s decision of 28 September 1995. As regards the applicant’s family situation, the authority noted that the applicant’s mother, his brother and two half sisters were living in Austria. However, having regard to the applicant’s serious criminal behaviour the issue of a residence prohibition was nevertheless necessary in the public interest.

On 21 June 1996 the applicant filed a complaint with the Constitutional Court (Verfassungsgerichtshof) against the residence prohibition. On 30 September 1996 the Constitutional Court declined to deal with the matter for lack of prospects of success and remitted the case to the Administrative Court (Verwaltungsgerichtshof).

On 9 December 1996 the applicant supplemented his complaint to the Administrative Court which dismissed it on 19 February 1997.  It found that the authorities had correctly found that the residence prohibition was necessary in the public interest and did not constitute a disproportionate interference with the applicant’s family situation.

On 4 April 1997 the applicant was taken into detention with a view to his expulsion and, on 9 April 1997, he has deported to Sarajewo.

COMPLAINTS

The applicant complains under Article 8 of the Convention that the residence prohibition imposed on him violated his right to respect for his private and family life. He further complains under Article 6 of the Convention about the alleged unfairness of the proceedings concerning the residence prohibition. In his view, such a measure should have been taken by a court and not by an administrative authority. Furthermore, the administrative authorities did not sufficiently take into account the fact that the Regional Court had only imposed suspended terms of imprisonment.

THE LAW

1.  The applicant complains that the residence prohibition imposed on him violated his right to respect for his private and family life. He relies on Article 8 of the Convention which reads as far as relevant 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 ... for the protection of health or morals....”

The Government accept that the residence prohibition interfered with the applicant’s right to respect for his private and family life. However, the measure at issue was justified under paragraph 2 of Article 8, being in accordance with the law - the relevant provisions of the Aliens Act - and having pursued the legitimate aim of the prevention of disorder or crime. The Government further contend that measure was necessary in a democratic society within the meaning of Article 8 § 2 of the Convention and that the Austrian authorities have not overstepped their margin of appreciation.

The Government submit that the applicant’s convictions justified the residence prohibition. In 1995, after having been in Austria for four years, he was convicted of burglary and in 1996 he was again convicted for this offence. Furthermore, in 1995 a prohibition on the possession of arms was issued against the applicant, after he had attacked several persons with an electroshock device. Considering these serious breaches of public order, the Austrian authorities could reasonably conclude that the applicant’s further stay would run counter to the public interest. As regards the applicant’s private and family life, the Government submit that the applicant had only come to live with his mother in Austria at the age of eleven and is able to speak the language of his native country. He can therefore reasonably be expected to find there a job there, similar to the one he had in Austria.

This is disputed by the applicant. He submits that the residence prohibition imposed on him constitutes a disproportionate measure as the offences of which he was convicted were merely minor acts of juvenile delinquency, and the Austrian authorities did not sufficiently consider his private and family situation. The applicant further submits that before his deportation in April 1997 he had developed strong ties with Austria. He had lived with his mother and siblings and had a close relation with them, whilst he no longer had contacts with his father. He last met him in 1988 and since then his father was reported missing after the armed conflict in Bosnia and Herzegovina. The applicant also submits that he has a fiancée in Austria, Mrs. A.S., who has given birth to his son (April 1998). 

The Court considers, in the light of the parties’ submissions, that the applicant’s complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2.  The applicant further complains under Article 6 of the Convention about the alleged unfairness of the proceedings concerning the residence prohibition.

Article 6 of the Convention, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

However, in the case of Maaouia v. France the Court found that proceedings for an exclusion order do not concern the determination of a “civil right” for the purposes of Article 6 § 1. The fact that the exclusion order incidentally had major repercussions on a person’s private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6 § 1 of the Convention. Furthermore orders excluding aliens from a State’s territory do not concern the determination of a criminal charge (Maaouia v. France [GC], no. 39652/98, §§ 38-39, 5.10.2000). The Court sees no reason to reach a different conclusion in the present case. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 § 3 of the Convention.

For these reasons, the Court by a majority

Declares admissible, without prejudging the merits, the applicant’s complaint that the residence prohibition imposed on him violated his right to respect for his private and family life;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress 
 Registrar President

ELVIS JAKUPOVIC v. AUSTRIA DECISION


ELVIS JAKUPOVIC v. AUSTRIA DECISION