AS TO THE ADMISSIBILITY OF
Application No. 25736/94
by Serafettin BIRINCI
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 24 October 1994
by Serafettin BIRINCI against Austria and registered on
21 November 1994 under file No. 25736/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen born in 1956 and living in
Weiler, Austria. He his represented by Mr. W. Weh a lawyer practising
in Bregenz.
A. Particular circumstances of the case
The facts, as submitted by the applicant may be summarised as
follows:
The applicant has been living and working in Austria since 1972
in Austria and lives with a Mrs. M. B. an Austrian citizen.
On 7 April 1992 the District Authority (Bezirkshauptmanschaft)
at Feldkirch withdrew the applicant's residence permit with effect
until 2002. An appeal was to no avail.
On 10 March 1993 the applicant made a request to set aside the
order withdrawing his residence permit, alleging that the denial of a
residence permit was no longer compatible with newly amended provisions
of the Aliens Act (Fremdengesetz) 1992.
On 10 May 1993 the Feldkirch District Authority rejected this
request. It is noted in this decision that although the applicant's
residence permit had also been withdrawn between 3 February 1988 and
3 February 1991 the applicant had committed further offences in June
1991 and January 1992 and had been fined AS 11.000 and AS 15.000
respectively.
Insofar as the applicant had argued that, in the light of the new
provision of Section 20 para. 2 of the Aliens Act the withdrawal of his
residence permit was no longer valid, the authority referred to the
transitional provision (Übergangsbestimmung) in Section 88 para. 3 of
the Aliens Act. It provided that the temporary revocation of
permission to reside remained valid even under the new provisions of
the Aliens Act until the original time-limit expired.
Furthermore the District Authorities stated that in weighing the
public interests against the private and family interests of the
applicant they saw no reason to grant the applicant's request.
Subsequently on 24 May 1993 the District Authority ordered the
applicant's detention with a view to his expulsion (Schubhaft).
On 25 May 1993 the applicant lodged an appeal with the Regional
Security Directorate against the order of the District Authority of
10 March 1993. Furthermore he complained to the Independent
Administrative Tribunal of the detention order.
On 7 June 1993 the applicant was arrested on the basis of the
District Court's order of 24 May 1993.
On 28 June 1993 the Regional Security Directorate for Vorarlberg
(Sicherheitsdirektion) granted the appeal. Referring to Section 26 and
20 para. 2 of the Aliens Act of 1992 the Directorate considered that
as the applicant had been living in Austria between 1972 until 1984 and
as his convictions only concerned minor regulatory offenses
(Verwaltungsübertretungen) he had at the relevant time qualified under
Section 10 para. 1 of the Citizens Act (Staatsbürgerschaftsgesetz 1985)
to apply for Austrian citizenship. Consequently the denial of a
residence permit was no longer compatible with Section 20 para. 2 of
the Aliens Act 1992. Referring furthermore mutatis mutandis to the
Administrative Court's jurisprudence the directory considered that the
change of the legal situation had to be taken into consideration when
deciding on the applicant's request for restitution of his residence
permit.
Meanwhile on 15 June 1993 the Independent Administrative Tribunal
(Unabhängiger Verwaltungssenat) of Vorarlberg had dismissed the
applicant's complaint (Beschwerde) about his arrest and detention
without an oral hearing. Contrary to the applicant's arguments, the
tribunal considered his arrest to be lawful and serving the purpose of
his expulsion. The tribunal noted that the order withdrawing the
applicant's residence permit was final since 21 October 1992.
According to that final decision the applicant had been obliged to
leave Austria within a week. Also the applicant's requests to the
Administrative Court to restore his residence permit had been
unsuccessful while the applicant nevertheless continued to live in
Austria and thereby violated domestic law (fremdenpolizeiliche
Vorschriften). In these circumstances his arrest and detention with
a view to his expulsion was necessary. The fact that the applicant had
brought fresh proceedings under Section 26 of the Aliens Act was
irrelevant as otherwise every execution measure in accordance with
Section 41 para. 1 of the Aliens Act could be frustrated by making a
request under Section 26 of that Act.
As the reasons for keeping the applicant in detention pending his
expulsion continued to exist, it was justified, in accordance with
Section 52 para. 1 first sentence of the Aliens Act, to order the
continued detention of the applicant.
The applicant then lodged a constitutional complaint which was
rejected by the Constitutional Court (Verfassungsgerichtshof) on
28 September 1993 as offering no prospects of success. On 20 December
1993 the Constitutional Court referred the matter to the Administrative
Court (Verwaltungsgerichtshof).
On 4 March 1994 the Administrative Court likewise rejected the
applicant's complaint that in view of the applicant's continued refusal
to leave Austria, although he was obliged to do so, justified his
arrest and detention with a view to expulsion. The court considered
it irrelevant that meanwhile the applicant had been granted a new
residence permit by decision of 28 June 1993. The court noted in this
respect that in any event the decision in question had been given
subsequent to the order of his arrest.
The decision was served on 27 April 1994.
B. Relevant Domestic law
The relevant provisions of the Aliens Act read as follows:
Domestic legal situation
[Translation]
s. 28 Absence of visa requirement and right of residence of EEA
citizens. (1) EEA citizens are aliens who are nationals of a
Contracting Party to the Agreement on the European Economic Area
("EEA Agreement").
(2) EEA citizens may enter and reside in Federal territory
without a visa.
(3) EEA citizens have the right to reside in Federal territory.
EEA citizens who do not have sufficient resources to maintain
themselves or who are not covered by sickness insurance in
respect of all risks have the right of residence only if they
can:
1. provide the authorities with a declaration of appointment
from their employer or a certificate of employment; or
2. prove to the authorities that they exercise a gainful self-
employed activity; or
3. prove to the authorities that they have a genuine prospect
of obtaining gainful employment within a period of six
months from entering the territory; or
4. prove to the authorities that they will be maintained as a
family member of an EEA citizen having the right of
residence.
[German]
§ 28. Sichtvermerksfreiheit und Aufenthaltsberechtigung von EWR-
Bürgern. (1) EWR-Bürger sind Fremde, die Statsangehörige einer
Vertragspartei des Abkommens über den Europäischen
Wirtschaftsraum (EWR-Abkommen) sind.
(2) EWR-Bürger brauchen zur Einreise und zum Aufenthalt keinen
Sichtvermerk.
(3) EWR-Bürger sind zum Aufenthalt im Bundesgebiet berechtigt.
EWR-Bürger; die nicht über ausreichende eigene Mittel zu ihrem
Unterhalt oder über keine Krankenversicherung verfügen; die alle
Risiken abdeckt, sind nur zum Aufenthalt berechtigt, wenn sie der
Behörde.
1. eine Einstellungserklärung ihres Arbeitgebers oder eine
Arbeitsbescheinigung vorlegen können oder
2. nachweisen können, dass sie eine selbständige
Erwerbstätigkeit ausüben oder
3. nachweisen können, dass sie innerhalb eines Zeitraumes von
sechs Monaten nach der Einreise begründete Aussicht auf
Aufnahme einer Erwerbstätigkeit haben oder
4. nachweisen können, dass ihnen als Familienangehöriger eines
zum Aufenthalt berechtigten EWR-Bürgers Unterhalt gewährt
wird.
[Translation]
s.88 Transitional provisions relating to orders for custody
pending deportation, residence prohibitions and deportation
orders.
(1) Proceedings for the issue of a residence prohibition or
deportation order which are still pending when this Federal Act
enters into force shall be pursued in accordance with its
provisions.
(2) Decisions to hold a person in custody pending deportation
made under the Aliens Police Act shall, from 1 January 1993, be
deemed to have been made under this Federal Act. Where the
custody pending deportation of any alien commenced before 1
January 1993 and has continued thereafter without interruption,
such custody cannot be maintained for a longer total period than
is allowed under this Federal Act.
(3) Residence prohibitions which have not expired when this
Federal Act comes into force shall be deemed to be residence
prohibitions of identical duration issued under this Federal Act.
[German]
§ 88 Übergangsbestimmungen für Schubhaftbescheide,
Aufenthaltsverbote und Ausweisungen.
(1) Verfahren zur Erlassung eines Aufenthaltsverbotes oder
einer Ausweisung, die bei Inkrafttreten dieses
Bundesgesetzes anhängig sind, sind nach dessen Bestimmungen
weiterzuführen.
(2) Schubhaftbescheide nach dem Fremdenpolizeigesetz gelten ab
1. Jänner 1993 als nach diesem Bundesgesetz erlassen. Die
Schubhaft eines Fremden, die vor dem Jahreswechsel
1992/1993 begonnen hat und ohne Unterbrechung danach
fortgesetz wird, darf insgesamt nicht länger
aufrechterhalten werden, als nach diesem Bundesgesetz
zulässig ist.
(3) Aufenthaltsverbote, deren Gültigkeitsdauer bei
Inkrafttreten dieses Bundesgesetzes noch nicht abgelaufen
sind, gelten als nach diesem Bundesgesetz erlassene
Aufenthaltsverbote mit derselben Gültigkeitsdauer.
COMPLAINTS
The applicant considers that in view of the provisions of the new
Aliens Act his arrest and detention was arbitrary and violated Article
5 of the Convention.
THE LAW
The applicant complains of his arrest on 7 June 1993 and
subsequent detention until 28 June 1993, with a view to securing his
expulsion, at which date the Regional Security Directorate granted his
appeal finding that in accordance with new regulation in the Aliens Act
of 1992 he had to be granted a residence permit. The applicant
considers that consequently his arrest and detention was arbitrary and
violated Article 5 para. 1 (Art. 5-1) of the Convention.
In accordance with the case-law of the European Court of Human
Rights, "if detention is to be lawful ...it must essentially comply
with national law and the substantive and procedural rules thereof
(see, in the context of Article 5 para. 1 (e) (Art. 5-1-e), Eur. Court
H.R. , Herczegfalvy judgment of 24 September 1992, Series A no. 244,
p. 21, para. 63; similar criteria were applied to detention within the
meaning of Article 5 para. 1 (a) (Art. 5-1-a) in Eur. Court H.R., Weeks
judgment of 2 March 1987, Series A no. 114, p. 22, para. 41).
Moreover, "the Convention imposes requirements over and above the
substantive and procedural rules of national law in ascertaining the
compatibility of deprivation of liberty with Article 5 (Art. 5), namely
that the individual should be protected from arbitrariness" (see, in
the context of Article 5 para. 1(a) and (b)(Art. 5-1-a, 5-1-b), Benham
v. United Kingdom, Comm. Report 29.11.94, para. 49, unpublished, with
reference to Eur. Court H.R., Van der Leer judgment of 21 February
1990, Series A no. 170, p. 25 para. 22).
The Commission notes that on 7 April 1992 the competent Austrian
authorities withdrew the applicant's residence permit and this decision
became final on 21 October 1992. On 24 May 1993 the competent
authorities consequently ordered the applicant's detention with a view
to his expulsion. An appeal against this order was rejected on 15 June
1993 by the Independent Administrative Tribunal which found that
despite the withdrawal of his residence permit the applicant continued
to live in Austria and thereby violated domestic law. His arrest and
detention were therefore found to be necessary to secure his expulsion.
The applicant's appeals to the Constitutional Court and the
Administrative Court were to no avail. The latter court stated, inter
alia, the fact that the applicant was on 28 June 1993 granted a
residence permit did not affect the legality of the detention order
which had been given previously, namely on 24 May 1993.
The Commission reaffirms that it is not competent to deal with
applications alleging that errors of law have been committed by
domestic courts, except where it considers that such errors involve a
violation of a right or freedom set out in the Convention (/59, Dec.
29.3.60, Yearbook 3 p. 222; No. 5258/71, Dec. 8.2.73, Collection 43,
p. 71; No. 79877/77, Dec. 13.12.79, D.R. 18 p.31).
The Commission finds that in the circumstances of the present
case there is nothing to show that the Austrian authorities and courts
dealt with the applicant's case in an arbitrary manner. The
applicant's arrest and detention were consequently justified under
Article 5 para. 1 (f)(Art. 5-1-f) of the Convention and there is no
appearance of a violation of Article 5 para. 1 (Art. 5-1) of the
Convention.
It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy