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FIRST SECTION

Application no. 27945/10
Jana MUCKOVA and Mohamed MAHRAN
against Austria
lodged on 20 May 2010

STATEMENT OF FACTS

THE FACTS

The applicants, Jana Muckova and Mohamed Mahran, are Slovak and Austrian nationals respectively. The first applicant was born in 1966 and lives in Schwarzau. The second applicant is the first applicant’s son who was born in 2002 and lives in Vienna. They were represented before the Court by Mr H. Pochieser, a lawyer practising in Vienna.

A.  The circumstances of the case

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

The first applicant (in the following “the applicant”) is a Slovakian national who came to Austria in 1990 and settled in Vienna. Her daughter from a first marriage in Slovakia also lives in Vienna, is married there and has a child.

In Austria, the applicant married an Austrian national and gave birth to her son, the second applicant. Subsequently, the first applicant and her husband divorced, but held joint custody for their son. Later on, the applicant and her former husband lived together again in a partnership.

The applicant’s parents and her brother also live in Austria.

The applicant was convicted in 1994 of attempted aggravated fraud. In 2002 she was convicted of attacking a police officer, of bodily harm and of causing damage and sentenced to three months’ imprisonment suspended on probation. In 2006, the applicant was convicted by the Vienna Regional Court (Landesgericht für Strafsachen Wien) of aggravated fraud and sentenced to six months’ imprisonment suspended on probation. She was found to have taken financial commissions pretending to act as a broker for council flats. In 2008, the applicant was again convicted by the Vienna Regional Court of aggravated fraud on a commercial basis and sentenced to three years’ imprisonment. She was found to have – by taking on different identities – fraudulently caused payments of family support from Social Security authorities and the Tax Office. She also fraudulently concluded mobile phone contracts and caused an overall damage of approximately 100,000 euros (EUR).

The applicant started to serve her sentences in September 2007. Her son continued to live with his father.

On 25 September 2008, the Vienna Federal Police Authority (Bundespolizeidirektion Wien) issued an exclusion order of unlimited duration in view of the applicant’s criminal record. The applicant appealed.

On 6 April 2009, the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat Wien) dismissed the applicant’s appeal. It found that in view of her last conviction the applicant had shown considerable criminal intent in the course of her fraudulent conduct and had exercised her schemes on a commercial basis. Furthermore, her earlier convictions were based on the same criminal notion, and at one time in 2002 she had even attacked a police officer. The Independent Administrative Panel further noted that since the applicant was still serving her prison sentence, a decrease of danger emanating from her could not be discerned. It conceded that the exclusion order constituted a significant interference with the applicant’s private and family life in Austria. However, with regard to the great number of serious criminal offenses directed against property the public interests would outweigh the applicant’s private ones. It noted that Bratislava was only an hour’s train ride away from Vienna and that the applicant’s family could thus visit her easily and regularly in Slovakia. Furthermore, the applicant had left Slovakia as a 24 year old which is why she could be considered to speak the language and to re-integrate easily into a new life there. In view of the fact that her family had not been capable to prevent the applicant from following her criminal notions, the interference with her private and family interests was proportionate.

The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) relying inter alia on Article 8 of the Convention.

On 16 June 2009, the Constitutional Court refused to deal with the complaint and referred it to the Administrative Court (Verwaltungs­gerichtshof).

On 9 November 2009, the Administrative Court also refused to deal with the complaint due to lack of an important legal question.

That decision was served on the applicant’s counsel on 20 November 2009.

The Court did not receive any information concerning the end of the applicant’s prison term or her current location.

B.  Relevant domestic law and international material

1.  The 2005 Aliens Police Act

Section 86 of the 2005 Aliens Police Act (Fremdenpolizeigesetz 2005) at the relevant time foresaw that an exclusion order against an EEA citizen could be issued if that person’s conduct constituted a danger for public order and security. Such personal conduct had to amount to a factual, imminent and substantial danger that would have an impact on core interests of Austrian society. That provision further stated that criminal convictions alone could not by implication result in such an exclusion order.

2.  Instruments of the Council of Europe

In Recommendation 1504 (2001) the Parliamentary Assembly of the Council of Europe recommended that the Committee of Ministers invite the governments of member States, inter alia:

“11.  ...

(ii)  ...

...

(g)  to take the necessary steps to ensure that in the case of long-term migrants the sanction of expulsion is applied only to particularly serious offences affecting State security of which they have been found guilty;

...”

The Committee of Ministers replied to the Assembly on the matter of non-expulsion of certain migrants on 6 December 2002. It considered that Recommendation Rec(2000)15 addressed many of the concerns of the Assembly and it was thus not minded to devise any new standards. Under the heading “IV. Effective protection against expulsion of family members”, the Committee of Ministers recommended to governments in Recommendation Rec(2002)4 that, where the withdrawal of or refusal to renew a residence permit, or the expulsion of a family member, is being considered:

“... member States should have proper regard to criteria such as the person’s place of birth, his age of entry on the territory, the length of residence, his family relationships, the existence of family ties in the country of origin and the solidity of social and cultural ties with the country of origin. Special consideration should be paid to the best interest and well-being of children.”

COMPLAINTS

1.  The applicants complain under Article 8 of the Convention that the exclusion order of unlimited duration violated their right to respect for their private and family life.

2.  The applicants also complain of the psychological hardship a separation of the family would cause and rely in this regard on Articles 2, 3 and 5 of the Convention.

3.  Under Article 6 of the Convention, the applicants finally complain of unfair proceedings regarding the exclusion order.

QUESTIONS AUX PARTIES

Has there been a violation of the applicants’ right to respect for their private and family life contrary to Article 8 of the Convention?