CASE OF KRASNIQI v. AUSTRIA
No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion)
András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1974 and lives in Kosovo. 6. The applicant entered Austria for the first time on 14 January 1994 when he was 19 years old. 7. In November 1994 the applicant was arrested for working illegally, and on 16 November 1994 the Dornbirn District Administrative Authority (Bezirkshauptmannschaft) issued a decision imposing a five-year residence ban (Aufenthaltsverbot) on him. 8. On 5 January 1995 the applicant lodged an asylum claim, which on 27 January 1995 was dismissed by the Federal Asylum Office (Bundesasylamt) as unfounded. His appeal against that decision was dismissed, and he voluntarily returned to Kosovo in September 1997. 9. On 1 July 1998 the applicant returned to Austria and lodged a fresh asylum claim on 8 July 1998, this time together with his wife and their daughter. The asylum claim was dismissed by the Federal Asylum Office on 12 August 1998, but the applicant and his family were granted subsidiary protection. They received a temporary residence permit, which was extended several times. 10. The applicant’s temporary residence permit, which was based on his right to subsidiary protection, expired in December 2009, as he had not applied for its renewal. 11. On 2 March 2003 the Dornbirn District Court (Bezirksgericht – hereinafter “the District Court”) convicted the applicant of bodily harm and sentenced him to a fine of 350 euros (EUR), suspended in part on the basis of a probationary period. 12. On 29 August 2003 the Feldkirch Regional Court (Landesgericht – hereinafter “the Regional Court”) convicted the applicant of bodily harm. He was sentenced to a fine of EUR 400, which was suspended on the basis of a probationary period. 13. On 30 October 2003 the Regional Court convicted the applicant of aggravated burglary and sentenced him to twelve months’ imprisonment, eight and a half months of which were suspended on the basis of a probationary period. He was in pre-trial detention and then prison from 28 July to 11 November 2003. 14. On 26 July 2004 the Regional Court convicted the applicant of participating in a brawl, for which he was sentenced to a fine of EUR 720. 15. On 17 January 2006 the District Court convicted the applicant of bodily harm and sentenced him to a fine of EUR 600. 16. On 13 March 2007 the Regional Court convicted the applicant of several offences under the Drugs Act (Suchtmittelgesetz) and aggravated threat, and he was sentenced to ten months’ imprisonment. The suspension of the eight and a half months’ imprisonment in the sentence of 30 October 2003 (see paragraph 13 above) was revoked. The applicant was in prison from 23 May until 12 November 2007. A part of the prison sentence was postponed until 18 November 2009, when the applicant started serving the remainder of the sentence. 17. On 21 January 2010, hence while he was in prison, the Regional Court convicted the applicant of an offence under the Drugs Act and sentenced him to a fine of 400 EUR. 18. On 12 May 2010 the Bregenz District Court convicted the applicant, who was still in prison at that time, of attempted bodily harm, bodily injury caused by negligence, and endangering the physical integrity of others, and sentenced him to a fine. 19. On 2 August 2012 the Regional Court convicted the applicant of aggravated threat and sentenced him to seven months’ imprisonment. It was his ninth criminal conviction in Austria. 20. On 13 September 2007, as a consequence of his criminal convictions, the Dornbirn District Administrative Authority issued the applicant with a ban prohibiting his return to Austria (Rückkehrverbot, see paragraph 33 below), which was valid for ten years. It however remained without effect as long as his subsidiary protection status was still valid (see paragraph 34 below). The Vorarlberg Security Police Authority (Sicherheitspolizeidirektion) confirmed the ban in a decision of 5 November 2007. The applicant did not appeal against that decision. 21. On 29 March 2010 the Innsbruck Federal Asylum Office instituted proceedings to withdraw the applicant’s subsidiary protection. On 7 April 2010 it conducted an interview with him, during which he stated the following concerning his living situation in Austria. He had four children, born in 1997, 1999, 2000 and 2006 respectively. His parents, his three siblings and their spouses and children all lived in the same city as him. His parents and his older brother were recognised refugees. He and his parents lived in the same house. He was working as a maintenance man and translator for Albanian and German, and his wife was also working. Both had a regular income. His father still owned some land and three shops in Kosovo, which were run by relatives at that time. The applicant stated that if he had to return to Kosovo he would not know what to do there or where to go. He had a “bad feeling” about returning, but did not fear any repression. The security situation was bad, and the views of society were primitive. His wife and children would not have to fear any problems upon returning to Kosovo, and would probably join him if he were expelled. He would, however, prefer to stay in Austria, where his children went to school. 22. On 17 May 2010 the Federal Asylum Office withdrew the applicant’s subsidiary protection status under section 9 (1) of the Asylum Act (Asylgesetz). It found that there was no longer a risk of a violation of the applicant’s rights under Article 2 or 3 of the Convention if he was returned to Kosovo, and declared his expulsion admissible. Quoting international sources, it explained that the security situation in Kosovo had significantly improved in recent years and was now considered to be stable. There was no threat from the Kosovo Liberation Army (Ushtria Çlirimtare e Kosovës) anymore, which the applicant had initially alleged when applying for asylum. 23. Turning to the applicant’s rights under Article 8 of the Convention, the Federal Asylum Office acknowledged how established his private and family life was in Austria, where his family members were living. However, it referred to his numerous convictions for crimes against life and limb as well as property, and concluded that the public interest in his expulsion outweighed his personal interest in remaining in the country. The Federal Asylum Office specifically mentioned the two convictions for drug offences in 2007 and 2010, which it considered particularly serious. Further, it held that the applicant still had ties with Kosovo, because he had grown up there, spoke Albanian, and was physically capable of working in order to earn a living. According to the applicant’s own statements, his father still owned some land and three shops in Kosovo, so it could be assumed that he could find work. Given that the applicant’s wife had her own income, the Federal Asylum Office further assumed that she would be able to take care of the needs of the family, and that the applicant could send her financial maintenance from Kosovo. 24. On 27 June 2011 the Asylum Court (Asylgerichtshof) confirmed the relevant parts of the Federal Asylum Office’s decision. It held that, according to Article 19 § 3 in conjunction with Article 37 § 1 of the Criminal Code (Strafgesetzbuch), the fines the applicant had received for his criminal convictions (1460 daily rates in total), amounted to almost twentyfour months’ imprisonment (see paragraphs 35-36 below). The actual prison sentences he had received amounted to twenty-two months in total, which was considerable. The Asylum Court concluded that, even though the applicant had strong private and family ties in Austria, the public interest in his expulsion in order to prevent crime outweighed his personal interest in continuing his family life in Austria. He had reoffended even after he had been issued with the ban prohibiting his return to Austria, a fact which did not speak in his favour. Also, he could reapply for a residence permit in 2017 when the ban expired. 25. The applicant lodged a complaint against that decision with the Constitutional Court. Among other things, he stated that one of his daughters had in fact been born as a result of an extra-marital relationship with an Austrian citizen, and was living with her Austrian mother and not with him. The applicant claimed that it would be difficult to maintain contact with her if he were expelled to Kosovo. 26. The Constitutional Court then asked the Asylum Court to submit a statement regarding this new fact. The Asylum Court replied on 13 September 2011 that the applicant had spoken of four children throughout the proceedings, but had never mentioned that one of them had in fact been born as a result of an extra-marital relationship and had never lived with him in the same household. He could continue to pay financial maintenance from Kosovo for his daughter. The Asylum Court expressed the view that the decision to declare the applicant’s expulsion admissible was nonetheless proportionate to the aims pursued, as his family life with his illegitimate daughter was in any event much less established than that with his other family members. 27. On 14 December 2011 the Constitutional Court refused to deal with the applicant’s complaint. That decision was served on the applicant’s counsel on 9 January 2012. 28. The applicant was in pre-trial detention and prison from 1 June 2012 (in relation to the criminal conviction of 2 August 2012, see paragraph 19 above) until he was placed in detention pending his expulsion on 4 January 2013. 29. On 5 January 2013 the applicant was expelled to Kosovo. His family decided to remain in Austria. 30. The ban on the applicant’s returning to Austria is in force until 16 November 2017.