CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 juin 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)