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Austria: Extradition and Family Unification Rights Balanced

(Oct. 28, 2010) On August 24, 2010, the Austrian Supreme Court (Oberster Gerichtshof (OGH)) ruled in favor of extraditing a fugitive to Macedonia by holding that his extradition did not violate European Union family unification standards (OGH, Aug. 24, 2010, 14 Os 87/10s, Rechtsdatenbank online subscription database, Macedonia had requested extradition so that the fugitive could serve a Macedonian prison sentence. The fugitive, however, had a wife and a child in Austria.

The extradition request was governed by:

The fugitive was convicted in Macedonia in absentia in 2002 for several repeat offenses, including larceny, aggravated larceny, and breaking and entering, and the Austrian courts had decided, in two instances, that extradition was permissible, if granted conditionally upon the fugitive's right to a new trial, if he desired to exercise that right. The fugitive petitioned the Austrian Supreme Court for a new proceeding to contest the permissibility of extradition, by alleging that the granting of extradition violated article 8, guaranteeing the right to family life, of the European Convention on Human Rights [ECHR] (Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, (last visited Oct. 26, 2010), ratified by Austria together with the Protocol of March 20, 1952, on August 5, 1958, BGBl. No. 210/1958; for Protocols 5, 6, & 7 ratified by Austria, see BGBl. No. 434/1969, BGBl No.138/1985, & BGBl. No. 628/1988, respectively). Such a reopening of the proceeding is possible according to the Austrian Code of Criminal Procedure (Strafprozessordnung, BGBl. No. 631/1975, as amended, § 363a, RIS,
(last visited Oct. 26, 2010)), as interpreted by Supreme Court case law (OGH, Aug. 1, 2007, docket No. 130s135/06m, RIS,

In its reasoning, the Austrian Supreme Court acknowledged that the family life guarantee of the ECHR at times leads to the denial of an extradition request. In the case at issue, however, the Supreme Court found that the Austrian interests in the prevention of disorder and crime and the Macedonian interests in having its sentences served outweighed the fugitive's interests in remaining in Austria with his family. The fugitive had come to Austria after he was convicted in2002. His wife is schizophrenic and his child has cystic fibrosis, for which the fugitive administers the needed treatments. The fugitive had housing in Macedonia where his family could have stayed while he was in prison. The Court found that the fugitive had failed to find out beforehand whether Austrian health and welfare services would administer the necessary treatments to his child, if the child remained in Austria. Therefore, the Court held that Austria's granting of extradition was in keeping with the exceptions of ECHR article 8 (2), according to which the authorities of a country may disregard the family life protections of the Convention, if it is necessary in the interest of public safety and to prevent disorder or crime.