CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 avril 1997

.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. 26300/95                       by Kristian Zvonimir RAGUZ                       against Austria        The European Commission of Human Rights (First Chamber) sitting in private on 10 April 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI                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 19 January 1995 by Kristian Zvonimir RAGUZ against Austria and registered on 25 January 1995 under file No. 26300/95;        Having regard tothe reports provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard tothe observations submitted by the respondent Government on 19 December 1995, and the observations in reply submitted by the applicant on 15 January 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1970 in Vienna, is a national of former Yugoslavia (Bosnia).   In the proceedings before the Commission, he is represented by Mr. T. Prader, a lawyer practising in Vienna.        The facts of the case, as submitted by the parties, may be summarised as follows.        Since his birth the applicant resided together with his family in Austria where he also went to school and had a professional training as tile layer.        On 29 September 1992 the Vienna Regional Criminal Court (Landesgericht für Strafsachen) convicted the applicant of having organised a gang and of gang robbery on thirteen counts, and sentenced him to four years' imprisonment.   The Court found that, between summer 1990 and January 1991, the applicant, as well as his co-accused, born in 1970 and 1972, respectively, and further accomplices prosecuted in separate proceedings had threatened and intimidated various victims and thus forced them to render little sums of money and cigarettes.   When fixing the sentence, the Court considered as mitigating circumstances that the applicant had so far no criminal record, had admitted the offences and had committed the offences as an adolescent (before completing the 21st year of his life).        On 4 November 1993 the Vienna Federal Police Authority (Bundespolizeidirektion Wien) imposed an unlimited residence ban on the applicant.   In the expulsion proceedings he was represented by counsel.        On 11 April 1994 the Vienna Public Security Authority (Sicherheitsdirektion Wien) dismissed the applicant's appeal.        The Authority referred to S. 18 para. 1 in connection with para. 2 (1) of the Austrian Aliens Act (Fremdengesetz), which provide that a residence ban has to be issued against an alien, inter alia, if he has been convicted by a domestic court and sentenced to imprisonment of more than three months.   Having regard to the applicant's conviction of robbery and sentence of four years' imprisonment, the Public Security Authority found that the requirements of S. 18 of the Aliens Act were met.        The Public Security Authority, in its decision, noted that the applicant had been living in Austria with his family since his birth and considered that the residence ban constituted an interference with the applicant's right to respect for his private and family life. However, the Public Security Authority found that the expulsion was necessary for the aim mentioned in Article 8 para. 2 of the Convention, namely the prevention of disorder and crime and of protecting the rights and freedoms of others. In this respect the Authority noted that the applicant, as member of a gang of adolescent persons, had committed robbery on several counts. Taking into account the applicant's defence that such offences were usually committed by juvenile gangs, the Authority also found that the applicant had no consciousness of guilt.        On 21 July 1994 the Administrative Court (Verwaltungsgerichtshof) dismissed the applicant's complaint.        On 20 June 1994, after having served part of his prison sentence, the applicant was taken into detention with a view to his expulsion. He was expelled in August 1994.        At some stage, the applicant, contrary to the residence ban, returned to Austria.   On 17 August 1995 the applicant was discovered by the Austrian authorities and arrested.   He was detained until 18 August 1995.   The applicant continued to stay illegally in Austria.   COMPLAINTS        The applicant complains under Article 8 of the Convention that the unlimited residence ban issued against him and his expulsion amount to a disproportionate and unjustified interference with his right to respect for his private and family life.   In particular he points out that he was born in Austria where he has his family and social ties. He has no roots in former Yugoslavia because he has no friends or relatives there.   According to the applicant, the offences committed by him have to be seen in connection with the social phenomenon of "juvenile gangs".   There would be no risk that he committed further offences.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 19 January and registered on 25 January 1995.        On 6 September 1995 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 1 December 1996.   The applicant replied on 22 January 1996.     THE LAW        The applicant complains that the unlimited residence ban issued against him and his expulsion amount to a violation of his right to respect for his private and family life.   He invokes Article 8 (Art. 8) of the Convention, which provides 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 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 respondent Government, referring to the case-law of the Convention organs, submit that the residence ban issued against the applicant was in accordance with Austrian law and necessary in a democratic society for the maintenance of public safety and the prevention of disorder and crime.   They note that the applicant was convicted of having organised a gang and of gang robbery.   In their view, the repetition of criminal offences indicated a risk of him committing further offences in Austria.   Furthermore, having regard to the applicant's private and family situation, they consider that the residence ban and his expulsion were not disproportionate.              The applicant objects to the Government's view on the test of necessity.   The applicant points out that he committed the offences while being juvenile and as a member of a juvenile gang.   There was no longer a risk of him committing criminal offences if permitted to stay in Austria.   Moreover, his mother and cousin were living in Austria and he himself had been born and grown up in Austria.   Even assuming that he might be capable of integrating into the society of another State, such an argument does not suffice to exclude disproportionality.        The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application.   The Commission concludes, therefore, that the application is not manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, by a majority,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber