AS TO THE ADMISSIBILITY OF
Application No. 26112/95
by Ferhat ALAZCIOGLU
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 26 June 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 June 1994 by
Ferhat ALAZCIOGLU against Austria and registered on 4 January 1995
under file No. 26112/95;
Having regard to the reports provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to the observations submitted by the respondent
Government on 12 February 1996 and the observations in reply submitted
by the applicant on 1 April 1996;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish national born in 1975 and presently
residing in Vienna. Before the commission he is represented by
Mr. Th. Prader, a lawyer practising in Vienna.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant arrived in Austria in 1977 together with his
parents and his two elder brothers. Ever since he has been living in
Austria where he also attended school. He only returned to Turkey for
holiday visits and speaks German much better than Turkish.
On 28 April 1992 the Vienna Juvenile Court (Jugendgerichtshof)
convicted the applicant, inter alia, of robbery and aggravated bodily
harm and sentenced him to a 34 months' prison term, 25 months of which
were suspended on probation.
On 22 October 1992 the Vienna Federal Police Authority
(Bundespolizeidirektion) issued a ten years' residence prohibition
(Aufenthaltsverbot) under Section 3 paras. 1 and 2 (1) of the Aliens
Act (Fremdenpolizeigesetz) against the applicant. The Police Authority
found that in view of the applicant's conviction the residence
prohibition was necessary in the public interest. The Police authority
had also regard to the applicant's private and family situation. In
this respect the authority noted that the applicant's parents were
living and working in Austria and that the applicant since his early
youth had lived in Austria and had attended school there. The Police
Authority concluded, however, that in view of the seriousness of the
applicant's conviction the public interest in imposing the residence
prohibition was not outweighed by the applicant's personal situation.
The applicant did not appeal against the Federal Police
Authority's decision of 22 October 1992. However, at an unspecified
date with the assistance of a lawyer he filed a request for revocation
of the residence prohibition.
On 18 August 1993 the Vienna Federal Police Authority dismissed
the applicant's request. It found that the situation had not
substantially changed since the imposition of the residence prohibition
and that it was too early to assess whether the applicant had changed
in a positive way.
On 15 November 1993 the Vienna Federal Security Authority
(Sicherheitsdirektion) dismissed the applicant's appeal. It found that
the public interest in preventing offences of the kind committed by the
applicant outweighed his personal interest in staying, and that the
residence prohibition was necessary for the prevention of crime and the
protection of the rights of others. Moreover, the Federal Police
Authority had duly considered the applicant's personal situation and
had issued only a limited residence prohibition for a period of ten
years.
Thereupon the applicant lodged a complaint with the
Administrative Court (Verwaltungsgerichtshof) which the latter
dismissed on 4 May 1994. The Administrative Court pointed out that on
28 April 1992 the applicant had been convicted not of minor offences
but of serious and numerous crimes including the formation of a gang,
forty counts of gang robbery, theft and aggravated bodily harm.
On 15 June 1994 the applicant was taken in provisional detention
with a view to securing his removal from Austria.
On 17 June 1994 he was released from detention on his assurance
that he would voluntarily leave the country. On 24 June 1994 he left
Austria for Turkey.
On 29 June 1994 the Austrian authorities granted the applicant
a visa for returning to Austria, valid for one year, whereupon he
returned to Vienna.
On 1 August 1995 the Vienna Federal Police Authority lifted the
residence prohibition against the applicant. The Authority found that
the applicant had meanwhile shown a good conduct so that the reasons
for which the residence prohibition had been imposed had ceased to
exist.
On 21 September the Vienna Regional Governor dismissed a request
by the applicant for a residence permit. He found that the applicant,
under the provisions of the Aliens Act, had to file such a request from
abroad. According to the applicant appeal proceedings are pending
against this decision.
COMPLAINTS
The applicant complains under Article 8 of the Convention that
the residence prohibition imposed on him violates his right to respect
for private and family life.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 16 June 1994 and registered on
4 January 1995.
On 18 October 1995 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
12 February 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 1 April 1996.
THE LAW
The applicant complains under Article 8 (Art. 8) of the
Convention that the residence prohibition imposed on him violates his
right to respect for private and family life.
The Government submit in particular that the applicant can no
longer claim to be a victim, as the residence prohibition against him
had been lifted. The applicant contests this view and maintains that
his right to respect for his private and family life has been violated
because, following the lifting of the residence prohibition, he has not
yet been granted a residence permit.
The Commission notes that a residence prohibition was issued
against the applicant on 22 October 1992. He left Austria on 24 June
1994 and returned after he was granted a visa for returning on 29 June
1994. On 1 August 1995 the residence prohibition, which formed the
basis of the present application, has been lifted.
The Commission notes further that from June 1994 on the applicant
remained in Austria. The application does not concern a refusal to
grant a residence permit, and so the applicant's submissions that he
should now be given such a permit is not pertinent (see also Bulut v.
Austria, Comm. Report 5.5.96, para. 22, not published). The Commission
considers therefore that the matter has been resolved, within the
meaning of Article 30 para. 1 (b) (Art. 30-1-b) of the Convention.
The Commission further considers that respect for Human Rights
as defined in the Convention does not require the continuation of the
examination of the application by virtue of Article 30 para. 1 in fine
(Art. 30-1) of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy