ECtHR Krasniqi v. Austria (no. 41697/12)
| Country of applicant: | Kosovo |
| Court name: | European Court of Human Rights (Fourth Section) |
| Date of decision: | 25-04-2017 |
| Citation: | Krasniqi v. Austria (no. 41697/12), 25 April 2017 |
Keywords:
| Keywords |
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Serious non-political crime
Description
"This category does not cover minor crimes nor prohibitions on the legitimate exercise of human rights. In determining whether a particular offence is sufficiently serious, international rather than local standards are relevant. The following factors should be taken into account: the nature of the act, the actual harm inflicted, the form of procedure used to prosecute the crime, the nature of the penalty, and whether most jurisdictions would consider it a serious crime. Thus, for example, murder, rape and armed robbery would undoubtedly qualify as serious offences, whereas petty theft would obviously not. A serious crime should be considered non-political when other motives (such as personal reasons or gain) are the predominant feature of the specific crime committed. Where no clear link exists between the crime and its alleged political objective or when the act in question is disproportionate to the alleged political objective, non-political motives are predominant. The motivation, context, methods and proportionality of a crime to its objectives are important factors in evaluating its political nature. The fact that a particular crime is designated as non-political in an extradition treaty is of significance, but not conclusive in itself. Egregious acts of violence, such as those commonly considered to be of a ‘terrorist’ nature, will almost certainly fail the predominance test, being wholly disproportionate to any political objective. Furthermore, for a crime to be regarded as political in nature, the political objectives should be consistent with human rights principles." |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Family unity (right to)
Description
“In the context of a Refugee, a right provisioned in Article 23 of Council Directive 2004/83/EC and in Article 8 of Council Directive 2003/9/EC obliging Member States to ensure that family unity can be maintained. Note: There is a distinction from the Right to Family Life. The Right to Family Unity relates to the purpose and procedural aspects of entry and stay for the purpose of reuniting a family, in order to meet the fundamental right enshrined in the Charter of Fundamental Rights of the European Union.” “A right to family unity is inherent in the universal recognition of the family as the fundamental group unit of society, which is entitled to protection and assistance. This right is entrenched in universal and regional human rights instruments and international humanitarian law, and it applies to all human beings, regardless of their status. ….Although there is not a specific provision in the 1951 Refugee Convention and its 1967 Protocol, the strongly worded Recommendation in the Final Act of the Conference of Plenipotentiaries reaffirms the ‘essential right’ of family unity for refugees.” |
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Cessation of protection
Description
Pertaining to thecircumstances in which a person may no longer be considered to be a refugee or to be eligible for subsidiary protection. |
Headnote:
Every country has the right to control the entry and residence of aliens in its territory. Withdrawal of subsidiary protection from individuals convicted of serious crimes and subsequent expulsion does not violate their right to family life under Article 8, when there are alternative means of communication, non-severed cultural ties with the motherland and a reasonable prospect of return after the entry ban expiry.
Facts:
The Applicant is a married Kosovar national, father of four, living with his family in Austria. All of them are beneficiaries of subsidiary protection and hold a temporary residence permit, which has been extended several times. From 2003 onwards the Applicant was convicted nine times for crimes against lifeand property and received sentences including imprisonment, which resulted in the withdrawal of his subsidiary protection by the authorities. The Applicant was ultimately expelled to Kosovo and an entry ban was issued against him.
The Applicant challenged the authorities’ decisions before the ECtHR claiming infringement upon his rights to private and family life under Article 8 ECHR because he had been living in the country for a considerable period and he was both socially and economically integrated there. Furthermore, he alleged that his expulsion would deprive him of the possibility to provide for his family still living in Austria and complained that even if his family would join him in Kosovo, one of his daughters would not because she is the fruit of an extra-marital relationship and lives with her mother.
Decision & reasoning:
The Court held that there had been no violation of Article 8 ECHR. It was explained that the frequency of the Applicant’s criminal behavior proved his indifference toward the host country’s legal system and already disrupted his family life by being receiving several imprisonment sentences. It further highlighted every state’s right to control the entry and residence of aliens in its territory.
The Court did not question the issue that emerged in relation with the Applicant’s daughter in question but it stated that the applicant had not substantiated how established his relationship with that daughter was and the reasons why their contact would have been too difficult. It further suggested the existence of alternative means of contact applicable to his daughter and the rest of his family in Austria, which had never been contested by the Applicant.
Taking into consideration the fact that both the Applicant and his wife still had ties with Kosovo, spoke the language, the fact that the Applicant was allowed to return to Austria in less than 5 years after the expulsion and Kosovo being safe enough for his wife and family to visit or move with him, as per the Applicant’s own statement, the Court found the expulsion not having seriously affected the Applicant’s rights as to constitute a violation of Article 8 ECHR.
Outcome:
No violation of Article 8 ECHR.
Observations/comments:
This summary was completed by Odyssefs Platonas, LLM student at Queen Mary University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Austrian Criminal Code Article 19§3 |
| 37§1 |
| Austrian Asylum Act 2005 Section 8(1) and 9 |
| Austrian Immigration Police Act Section 62(1) and 65(3) |
Cited Cases:
| Cited Cases |
| ECtHR - Slivenko v. Latvia [GC], Application No. 48321/99 |
| ECtHR - Boultif v Switzerland, Application No. 54273/00 |
| ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99 |
| ECtHR - Bajsultanov v Austria, Application No. 54131/10 |
| ECtHR - Miah v. the United Kingdom, Application No. 53080/07 |
| ECtHR- Berrehab v. the Netherlands, Application no. 10730/84 |
| ECtHR - Jeunesse v. the Netherlands [GC], no. 12738/10 |
| ECtHR - Maslov v. Austria ([GC], no 1638/03 |
| ECtHR - A.H. Khan v. UK, Application no. 6222/10, 20.12.2011 |
| ECtHR - Balogun v. United Kingdom, no. 60286/09, 10 April 2012 |
| ECtHR - Abdulaziz, Cabales and Balkandali v The United Kingdom, Application nos. 9214/80; 9473/81 and 9474/81, 28 May 1985 |
| Joseph Grant v. the United Kingdom, no. 10606/07, 8 January 2009 |
| Samsonnikov v. Estonia, no. 52178/10, § 86, 3 July 2012 |
| Palanci v. Switzerland, no. 2607/08, 25 March 2014 |
| Sarközi and Mahran v. Austria, no. 27945/10, 2 April 2015 |
| Salem v. Denmark, no. 77036/11, 1 December 2016 |
Other sources: