CASE OF SARKÖZI AND MAHRAN v. AUSTRIA
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)
Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
6. The first applicant was born in 1966 and currently lives in Mosonmagyaróvár, Hungary. She came to Austria in 1990 holding a visa and settled in Vienna. She was later issued temporary residence permits, until she was granted a permanent residence permit on 30 September 1997. 7. The first applicant subsequently met an Austrian citizen and married him. From that union, the second applicant was born in 2002 in Vienna. The couple later divorced, but continued to hold joint custody of their son. 8. Other family members of the first applicant living in Austria are her daughter from a first marriage, her daughter’s husband and child, her brother and her parents. 9. The second applicant has Austrian citizenship and lives in Vienna with his father. Other family members of his living in Austria are his grandparents, his uncle, his half-sister and her family. 10. The first applicant’s criminal record shows seven convictions. 11. On 12 October 1993 the Hernals District Court (Bezirksgericht) convicted the first applicant of deliberately causing bodily harm and sentenced her to pay a fine of 5.400,00 Austrian Schillings (“ATS”). 12. On 6 September 1994 the Vienna Regional Criminal Court (Straflandesgericht, “the Criminal Court”) convicted the first applicant of attempted aggravated fraud and sentenced her to five months’ imprisonment, suspended with a probationary period of three years. 13. On 7 July 1995 the Donaustadt District Court convicted the first applicant of causing damage to private property and sentenced her to pay a fine of 40 daily rates (Tagessätze), in sum ATS 3.600,00. 14. On 7 May 2002 the Criminal Court convicted the first applicant of causing damage to private property, bodily harm and assault on a police officer and sentenced her to three months’ imprisonment, again suspended with a probationary period of three years. 15. On 24 April 2003 the Criminal Court convicted the first applicant and her former husband (the second applicant’s father) of partly attempted, partly completed fraud and sentenced them to two months’ imprisonment, suspended on probation. 16. On 28 July 2006 the Criminal Court convicted the first applicant of aggravated fraud and sentenced her to six months’ imprisonment. The probationary period for her previous conviction was extended to five years. 17. On 29 May 2008 the first applicant was convicted of partly attempted, partly completed aggravated fraud on a commercial basis and sentenced to three years’ imprisonment. 18. The first applicant started serving her sentence on 28 September 2007 and was released on 30 December 2010. During that time, the second applicant lived with his father. 19. In a letter dated 29 September 1994 the Aliens Police (Fremdenpolizei) warned the first applicant that, if convicted once more, an exclusion order could be issued against her (Aufenthaltsverbot). 20. On 25 September 2008, following her latest conviction and threeyear prison sentence, the Vienna Federal Police Authority (Bundespolizeidirektion) issued an unlimited exclusion order against the first applicant, pursuant to sections 63 § 1 and 86 § 1 of the Aliens Police Act (Fremdenpolizeigesetz). It stated that after the first applicant’s conviction in 2006, the Aliens Police had refrained from issuing an exclusion order against her, because she had already been living in Austria for over 17 years and held a permanent residence permit. The authorities stated that at that point they did not consider that she posed a serious threat to public order and security within the meaning of section 86 § 1 of the Aliens Police Act. However, her most recent conviction did justify the assumption that her further stay in Austria endangered public order and safety. The exclusion order was necessary to protect the economic wellbeing of Austria and to prevent criminal activities, hence it was in accordance with Article 8 § 2 of the Convention. It further held that even though the exclusion order constituted an interference with her private and family life, because her children and her parents lived in Austria, the public interest in her expulsion outweighed her interest in remaining in the country. 21. The first applicant appealed. During the oral hearing at the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat) on 28 January 2009, she provided a letter from a general practitioner, which stated that the separation from the second applicant due to her imprisonment had caused her son severe mental stress, and that it was important for his development to grow up with his mother. She stated that her son visited her frequently in prison, and that they tried their best to keep up their relationship. Furthermore, she pointed out that she also had other close family ties to Austria, with her daughter, her brother and her parents living there. She regretted her criminal convictions and requested that the exclusion order be lifted. 22. On 6 April 2009 the Vienna Independent Administrative Panel dismissed the appeal. It took into consideration the nature and seriousness of the offences the first applicant had committed and the resulting personality profile, reiterating that she had started her criminal activities shortly after her arrival in Austria. Her latest criminal conviction was based on numerous offences against private property, serving her as a source of income. She had therefore demonstrated that she did not respect the property of others, and that she constituted a danger to the public because of her fraudulent activities, which she had committed over a long period of time. Previous convictions for bodily harm and assault on a police officer showed that she did not shy away from attacks on life and limb either. Because she was serving her sentence at the time of the decision, it could not be assumed that the danger emanating from her person had diminished, which was why the unlimited exclusion order was justified. 23. Concerning her private and family life, the Independent Administrative Panel held that the first applicant was well integrated in Austria, and that many of her family members lived there, in particular her then seven-year-old son. The exclusion order therefore constituted an interference with her rights under Article 8 of the Convention. However, due to her criminal record and the serious nature of her offences, the public interest in her expulsion outweighed her personal interest in respect of her private and family life. Furthermore, because of the short distance between Bratislava and Vienna of around one hour by train, it would be possible for her family members to visit her frequently. The first applicant came to Austria when she was 24 years old, speaks the Slovak language and could easily reintegrate in her country of origin. Because of the seriousness of her crimes, and because the presence of her family members in Austria could not deter her from repeatedly committing offences, the exclusion order was proportionate to the aim pursued. Because it was not possible to assess when the first applicant would cease to represent a danger, there was no reason to limit the exclusion order. The Independent Administrative Panel added that the first applicant could apply for the lifting of the exclusion order after an appropriate interval, and in any event three years after its enforcement, if the circumstances for its issue had changed significantly. 24. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) relying, inter alia, on Article 8 of the Convention. 25. On 16 June 2009 the Constitutional Court refused to deal with the complaint and referred it to the Administrative Court (Verwaltungsgerichtshof). 26. On 9 November 2009 the Administrative Court rejected her complaint due to the lack of any important legal question to be answered. It stated that the Independent Administrative Panel had not deviated from the previous jurisprudence of the Administrative Court. 27. On 15 July 2010 the first applicant lodged an application for the exclusion order to be lifted pursuant to section 65 of the Aliens Police Act. 28. On 12 January 2011 the Vienna Federal Police Authority dismissed the application. 29. On 12 September 2011 the Independent Administrative Panel partly granted the first applicant’s appeal and reduced the duration of the exclusion order to eight years, because the relevant legal provisions had changed in the meantime. Pursuant to section 67 (formerly section 86) of the Aliens Police Act as in force at the relevant time, an exclusion order against a citizen of the European Economic Area (EEA) may not exceed ten years in duration. Pursuant to paragraph 4 of that provision, the exclusion order would therefore cease to be in force on 29 September 2016, irrespective of whether the first applicant actually left the country. 30. The first applicant appealed against this decision. On unspecified dates, the Constitutional Court and the Administrative Court rejected her complaints. 31. The Vienna Youth and Family Office, in a statement dated 18 June 2012, noted that the separation of the applicants due to the first applicant’s imprisonment had already had a traumatizing effect on the second applicant and had strained the relationship between mother and son. Another separation would likely re-traumatize the second applicant and severely jeopardize his psychosocial development, which is why it would be in the best interest of the child to grant his mother a residence permit. 32. A medical report by psychologist E.G. dated 23 November 2012 attested that the second applicant was suffering from post-traumatic stress disorder, emotional disorder and separation anxiety as a result of the separation from his mother when she had to serve her time in prison. He was in need of constant psychological care and had voiced suicidal thoughts after he had learned that his mother would be expelled. Another separation from his mother would traumatise him again and have long-term effects on his mental state. 33. The neurologist N.F., in a report dated 16 November 2012, diagnosed the first applicant as suffering from a pre-suicidal syndrome and stress reaction and stated that any additional stress was to be avoided. Her psychologist E.G., in a statement of 23 November 2012, attested that she suffered from depression, anxiety and claustrophobia. She had also voiced suicidal thoughts. 34. A subsequent application by the first applicant for the exclusion order to be lifted, dated 12 August 2012, was unsuccessful. 35. On 4 December 2012 the first applicant was expelled to Slovakia. The second applicant has lived with his father in Vienna since then. Both parents continue to share custody.