AS TO THE ADMISSIBILITY OF
Application No. 24375/94
by Bekir CIFTCI
against Austria
The European Commission of Human Rights sitting in private on
7 April 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
Mr. H.C. KRÜGER, Secretary to the Commission
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 April 1994 by
Bekir CIFTCI against Austria and registered on 10 June 1994 under file
No. 24375/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
23 January 1995 and the observations in reply submitted by the
applicant on 20 March 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen born in 1965. Before the
Commission he is represented by Mr. L. Weh, a lawyer practising in
Bregenz. The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant arrived in Austria in 1972 and he lived with his
parents until 1984. In 1990 he married an Austrian citizen with whom
he has three children. They were born in 1985, 1987, and in 1991
respectively and have Austrian citizenship. The applicant used to work
in Austria.
On 14 January 1992 the Feldkirch Regional Court (Landesgericht)
convicted the applicant for offences under the Narcotics Act
(Suchtgiftgesetz) and sentenced him to two years' imprisonment. The
court established that between January and July 1991 the applicant had
sold a total of 700 grams of heroin, and that at different periods
between July 1990 and August 1991 he had consumed cannabis, cocaine and
heroin.
The Feldkirch Regional Court took into account, inter alia, that
the applicant had admitted the acts imputed to him, that he had a clear
criminal record and that he had started undergoing therapy which was
progressing successfully. The execution of the sentence was stayed
until 1 July 1993 and the applicant was ordered to undergo in-patient
disintoxication therapy.
On 6 March 1992 the District Administrative Authority
(Bezirkshauptmannschaft) in Bregenz imposed a residence prohibition on
the applicant. The decision states, inter alia, that in 1989 the
applicant had tried to transport illegally 33 Turkish nationals into
Germany. The applicant admitted before the Austrian authorities that
he had spent five weeks in detention in Kempten (Germany) and had paid
a fine of DM 5,000. The Administrative Authority further established
that in the course of the preceding five years the applicant had
committed 13 administrative offences (Verwaltungsübertretungen) in
Austria.
The District Administrative Authority held that both the
applicant's attempt to smuggle foreigners out of Austria and his
conviction for drug offences represented a relevant reason for imposing
a residence prohibition on him.
The residence prohibition was based on Section 3 (1) of the
Aliens Police Act 1954 (Fremdenpolizeigesetz). The Administrative
Authority considered that in the light of the above findings the
prohibition was necessary for the maintenance of public order and
security. The public interest in preventing the applicant from
committing further offences in Austria prevailed over the applicant's
interest in staying united with his family.
On 20 October 1992 the Vorarlberg Police Headquarters
(Sicherheitsdirektion) upheld the residence prohibition imposed on the
applicant. The applicant then lodged a constitutional complaint. On
11 January 1993 the Constitutional Court (Verfassungsgerichtshof)
granted his complaint suspensive effect, but on 22 March 1993 it
decided not to deal with it. The case was transferred to the
Administrative Court (Verwaltungsgerichtshof).
In his further and better particulars to the Administrative Court
the applicant claimed, inter alia, that the interference with his right
to respect for his private and family life was disproportionate to the
aim pursued. In his view, the administrative authorities should have
taken into account his behaviour and, in particular, his readiness to
undergo a therapy. He further complained that the administrative
authorities had not paid due attention to the progress he had made in
the course of that therapy, and to the decision to stay the execution
of his prison sentence of 14 January 1992.
On 30 September 1993 the Administrative Court dismissed the
applicant's complaint. It pointed out that the applicant had massively
violated public order and security in that he had illegally transported
foreigners out of Austria and had committed drug offences.
The Administrative Court found that, in view of the particularly
dangerous character of drug offences, the public interest prevailed in
such cases over the private interests of the person concerned. The
Administrative Court further held:
[Translation]
"In view of these facts, neither the applicant's readiness to
undergo therapy, nor the stay of execution of the sentence
granted by the court was capable of affecting the balance between
the conflicting interests which was properly struck by the
administrative authority to the disadvantage of the applicant."
[Original]
"Von daher gesehen vermochte weder die Bereitschaft des
Beschwerdeführers, sich einer Therapie zu unterziehen, noch der
vom Gericht gewährte Aufschub des Strafvollzuges die
richtigerweise zuungunsten des Beschwerdeführers ausgegangene
behördliche Interessenabwägung zu beeinflussen."
On 5 October 1993 the Innsbruck Court of Appeal
(Oberlandesgericht) suspended, after having examined the final report
of the hospital in which the applicant had been treated, the
applicant's prison sentence for a three years' probationary period.
According to the medical report, the applicant underwent in-
patient treatment from 7 November 1991 until 23 February 1992. From
the latter date until 24 July 1992 he spent only nights in the hospital
while he worked during the day. Subsequently, the applicant received
out-patient social therapeutic treatment. On 8 September 1993 the
institution "Clean", an advisory body on drug questions, attested his
motivation to abstain from the use of drugs in the future. The Court
of Appeal concluded, therefore, that the applicant's treatment had been
successful and decided to mitigate his sentence.
In view of this decision, the applicant requested that the
residence prohibition imposed on him should be lifted. His request was
dismissed by the Bregenz District Administrative Authority on 12 July
1994. On 3 November 1994 the Vorarlberg Police Headquarters upheld
this decision. The District Administrative Authority noted that under
Section 26 of the Aliens Act a residence prohibition shall be lifted
either on request or ex officio when the grounds on which such a
prohibition was based no longer exist. It considered, however, that
the applicant was likely to re-offend in the future, and that the
decision to mitigate his sentence did not warrant lifting the residence
prohibition which had been imposed on him.
On 3 November 1994 the Constitutional Court refused to deal with
the applicant's complaint about the refusal to lift the residence
prohibition. It held that the complaint only raised issues under
ordinary law, and that the case was not excluded from the jurisdiction
of the Administrative Court.
COMPLAINT
The applicant complains that the residence prohibition imposed
on him interfered with his right to respect for his private and family
life. He alleges a violation of Article 8 of the Convention.
Originally, the applicant also complained that the Austrian
authorities had not taken into account that his prison sentence was
suspended after he had successfully undergone a disintoxication
therapy.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 25 April 1994 and registered
on 10 June 1994.
On 20 October 1994 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 23
January 1995, after an extension of the time-limit fixed for that
purpose. The applicant replied on 20 March 1995. On 10 September 1996
he submitted supplementary observations and informed the Commission
about further developments in his case.
THE LAW
The applicant complains that the residence prohibition imposed
on him interfered with his right to respect for his private and family
life. He alleges a violation of Article 8 (Art. 8) of the Convention
which reads, so far as relevant, as follows:
"1. Everyone has the right to respect for his private and
family life, ...
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being
of the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Government maintain that the applicant has failed to comply
with the requirement as to the exhaustion of domestic remedies laid
down in Article 26 (Art. 26) of the Convention as he did not seek
redress, after the administrative authorities had refused to lift the
residence prohibition, before the Constitutional Court or the
Administrative Court.
The applicant contends that he unsuccessfully complained about
the refusal to lift the residence prohibition to the Constitutional
Court. He submits that he did not seek redress in this respect also
before the Administrative Court as such an action lacked any prospect
of success. The applicant further maintains that the object of his
application is the decision to impose a residence prohibition on him,
and that he does not complain separately about the subsequent refusal
to lift this prohibition.
The Commission notes that the final decision as regards the
imposition of a residence prohibition upon the applicant was taken by
the Administrative Court on 30 September 1993. The judgment was served
on the applicant on 25 October 1993. Subsequently, the applicant
requested that the residence prohibition should be lifted on the ground
that he had successfully undergone a disintoxication therapy and that
his prison sentence had been, therefore, mitigated. The applicant was
entitled to lodge such a request as under Section 26 of the Aliens Act
a residence prohibition shall be lifted when the grounds on which it
was based no longer exist.
Thus, as a result of further developments in the applicant's case
a new opportunity arose for the respondent Party to redress the alleged
interference with the applicant's rights under the Convention. Since
the basis of the rule of exhaustion of domestic remedies laid down in
Article 26 (Art. 26) of the Convention is that the State made
answerable must have had an opportunity of redressing the alleged
damage by domestic means (cf., mutatis mutandis, No. 12945/87, Dec.
4.4.90, D.R. 65 p. 173), the Commission will take into consideration
also the proceedings concerning this request.
The Commission notes that the applicant unsuccessfully complained
about the refusal to lift the residence prohibition to the
Constitutional Court but failed to seek redress in this respect also
before the Administrative Court. However, on 30 September 1993, when
dealing with the applicant's complaint about the imposition of a
residence prohibition, the Administrative Court had already held that
neither the applicant's readiness to undergo a therapy, nor the stay
of execution of his prison sentence was capable of affecting the
decision challenged by the applicant.
In view of this finding, the Commission considers that a possible
complaint to the Administrative Court about the refusal to lift the
residence prohibition after the applicant's sentence had been mitigated
cannot be regarded as a remedy which the applicant should be required
to try (cf., mutatis mutandis, No. 14838/89, Dec. 5.3.91, D.R. 69
pp. 286, 302). Accordingly, the applicant used the remedies which were
effective and sufficient for the purposes of Article 26 (Art. 26) of
the Convention and the Government's objection in this respect cannot
be upheld.
The Government further point out that the applicant was convicted
of drug offences and that he was involved in illegal transporting of
foreigners from Austria to Germany. They submit that the interference
with the applicant's rights under Article 8 (Art. 8) of the Convention
pursued a legitimate aim, namely the prevention of disorder and the
protection of public safety and health. The Government consider, with
reference to the seriousness of the acts committed by the applicant and
the risk that he could re-offend, that the interference with his rights
was not disproportionate to the aim it pursued notwithstanding that the
applicant was socially integrated in Austria.
The applicant contends that the interference with his rights was
disproportionate as his family and social ties were in Austria. He
submits that the imposition of a residence prohibition on him was
arbitrary as there existed no pressing social need for separating him
from his family.
After an examination of these issues in the light of the parties'
submissions, the Commission considers that they raise questions of fact
and law which can only be determined by an examination of the merits.
It follows that the applicant's complaint cannot be declared
inadmissible as being manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds of
inadmissibility have been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy