AS TO THE ADMISSIBILITY OF
Application No. 20933/92
by Yasemin CIMEN
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 29 June 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
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 14 September 1992
by Yasemin Cimen against Austria and registered on 12 November 1992
under file No. 20933/92;
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 facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Turkish national, born in 1967, and presently
residing in Hohenems (Austria). Before the Commission she is
represented by Mr. W.L Weh, a lawyer practising in Bregenz.
A. Particular circumstances of the case
In 1990 the applicant married in Turkey M. Cimen, who works and
lives in Austria. In 1991 their first child was born.
On 2 October 1990 the Dornbirn District Administrative Authority
(Bezirkshauptmannschaft) informed the applicant that, on her entry into
Austria on 31 August 1990, she had circumvented the procedures of
border control. As she had no residence permit, which was necessary
for Turkish nationals under the Austrian-Turkish Visa Agreement, her
residence in Austria was unlawful and a deportation order (Ausweisung)
would be issued. She was warned that if she did not leave the country
immediately after the deportation order had been issued, her removal
(Abschiebung) would be considered. She was requested to submit her
comments within one week.
On 9 October 1990 the applicant, who was now represented by a
lawyer, submitted her comments. She stated that she had not
circumvented the border control, but at the border check point the
border control officials had not checked the car. She also requested
that a residence permit (Sichtvermerk) with the same duration as her
husband's be issued to her.
On 12 October 1990 the District Administrative Authority issued
a deportation order against the applicant. The Authority found that
the applicant had entered Austria without a valid visa and had
circumvented the border control, as her passport did not contain a
stamp of a border control office.
On 18 October 1990 the applicant appealed invoking Article 8 of
the Convention.
On 29 October 1990 the District Authority informed the applicant
that her appeal had no suspensive effect and that she, therefore, had
to leave Austria. The District Authority added that the deportation
order did not entail any prohibition of re-entering Austria.
On 11 December 1990 the Vorarlberg Public Security Authority
(Sicherheitsdirektion) dismissed the applicant's appeal. The Public
Security Authority held that the applicant's allegation that she had
simply not been checked at the border by the border control officials
was implausible. According to a general instruction (Weisung) issued
by the Federal Ministry for the Interior (Bundesministerum für Inneres)
passports of Turkish nationals had to be stamped at every crossing of
the border. The Public Security Authority concluded that the applicant
had circumvented the border control when she entered Austria.
The Public Security Authority held further that it was not
necessary to have regard to the applicant's private and family
situation as a deportation order did not constitute a residence
prohibition (Aufenthaltsverbot). While a residence prohibition had the
aim of prohibiting the residence of aliens for a certain period, a
deportation order had no such effect. Its only purpose was the removal
of aliens who had entered Austria by circumventing the border control.
An alien against whom a deportation order had been issued had the
possibility to re-enter Austria once he or she had complied with the
necessary procedures.
On 17 December 1990 the applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof). She submitted that the
imposition of a deportation order for merely having circumvented the
formalities of border control was a disproportionate interference with
her rights under Article 8 of the Convention.
On 11 January 1991 the Constitutional Court granted suspensive
effect to the applicant's complaint.
On 13 December 1991 the Constitutional Court refused to entertain
the applicant's complaint. It found that the her complaint had no
prospect of success and referred to previous case law.
On 4 May 1992 the Administrative Court, to which the case had
been referred by the Constitutional Court, granted suspensive effect
to the applicant's complaint.
On 9 July 1992 the Administrative Court dismissed her complaint.
The Administrative Court held that the Public Security Authority had
rejected as implausible the applicant's argument that she had not
circumvented the border control but had simply not been checked by the
border control officials. There were no indications that the Public
Security Authority wrongly assessed the evidence before it, therefore
its decision was in accordance with the law.
Apparently in November 1992 the applicant's request for a
residence permit was dismissed by the Dornbirn District Administrative
Authority.
On 17 March 1993 the Constitutional Court, upon a complaint by
the applicant, quashed this decision. The Constitutional Court found
that in deciding whether a residence permit should be granted to the
applicant the Administrative Authority failed to take her private and
family situation into account and balance it against public interests
in refusing the residence permit. This decision therefore had violated
the applicant's rights under Article 8 of the Convention.
On 9 December 1993 the Federal Minister for the Interior
(Bundesminister für Inneres) informed the applicant that the Vorarlberg
Public Security Authority had been instructed to order the applicant
to introduce a new application for a residence permit under the
Residence Act (Aufenthaltsgesetz) within two months from abroad. If
the applicant failed to do so the Minister would consent to her
removal.
The deportation order has not been enforced.
B. Relevant domestic law
1. Section 10a para. 1 of the Aliens Act (Fremdenpolizeigesetz), as
in force at the relevant time, reads as follows:
"Aliens who have entered Austria by circumventing the border control and who cannot be returned, may, upon a written decision, be deported within four months after they have entered Austria." "Fremde, die unter Umgehung der Grenzkontrolle eingereist sind und nicht zurückgeschoben werden dürfen, können innerhalb eines Zeitraumes von vier Monaten nach der Einreise mit Bescheid ausgewiesen werden." 2. In its decision of 27 November 1991 the Constitutional Court held that Section 10a para. 1 of the Aliens Act only concerned a restricted group, namely aliens who entered Austria by circumventing the border control. Its purpose was to combat organised illegal entry of aliens (Schlepperunwesen). Section 10a of the Aliens Act thus served a legitimate aim within the meaning of paragraph 2 of Article 8 of the Convention, namely the interest of public safety, and the deportation order was necessary for this aim. In arriving at this conclusion it was also important that the deported alien was entitled to institute proceedings for obtaining a permit to enter Austria by requesting a visa from abroad. In deciding on his visa request the authorities were obliged duly to take his family interests into account. COMPLAINTS 1. The applicant complains under Article 8 of the Convention that the deportation order issued against her violated her right to respect for her private and family life, as the Authority had not been obliged to take her family situation into account when issuing the deportation order. She submits that the enforcement of the deportation order would lead to a prolonged period of separation from her husband as she could not manage alone with all the administrative formalities necessary for obtaining a residence permit for Austria in Turkey. 2. The applicant further complains under Article 6 para. 2 of the Convention about a violation of the principle of presumption of innocence. She submits that in the deportation order the Austrian authorities accused her of having circumvented the border control although she had not been convicted of this administrative offence. THE LAW 1. The applicant complains under Article 8 (Art. 8) of the Convention that the deportation order issued against her, violated her right to respect for her private and family life, as the Authority had not been obliged to take her family situation into account when issuing the deportation order. Article 8 para. 1 (Art. 8-1) of the Convention reads as follows: "1. Everyone has the right to respect of his private and family life, his home and his correspondence." The Commission recalls that no right of an alien to enter or to reside in a particular country, nor a right not to be expelled from a particular country is as such guaranteed by the Convention (cf. No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239). However, in view of the protection of the right to respect for family life afforded by Article 8 (Art. 8) of the Convention, the expulsion of a person from a country in which his immediate family is resident may give rise to issues under this provision (cf. No. 9478/81, Dec. 8.12.81, D.R. 27 p. 243). The Commission recalls further that the State's obligation to admit to its territory aliens who are relatives of persons resident there will vary according to the circumstances of the case. The court has held that Article 8 (Art. 8) does not impose a general obligation on States to respect the choice of residence of a married couple or to accept the non-national spouse for settlement in that country (Eur. Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 94, para. 68). In the present case the applicant has been married since 1990 to a Turkish national, living and working in Austria and in 1991 a child was born to the couple. She arrived in Austria on 31 August 1990 and, according to the finding of the competent authorities, circumvented the border control. On 12 October 1990 a deportation order was issued against her, which, however, has not yet been enforced. Having regard to the findings of the Constitutional Court in its decision of 27 November 1991 the Commission observes further that the deportation order issued against the applicant does not imply a residence prohibition and that immediately after having complied with the deportation order she could institute proceedings for obtaining a permit to enter Austria by requesting a visa from abroad. In these circumstances the Commission finds that the deportation order imposed on the applicant does not show any lack of respect for her private and family life within the meaning of Article 8 (Art. 8) of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicant further complains under Article 6 para. 2 (Art. 6-2) of the Convention about a violation of the principle of presumption of innocence. She submits that in the deportation order the Austrian authorities accused her of having circumvented the border control although she had never been convicted of this administrative offence. The Commission recalls that despite the wording of Article 6 para. 2 (Art. 6-2), which secures the presumption of innocence to "everyone charged with a criminal offence", this provision has been consistently interpreted as also applying to situations where the person concerned is not or no longer formally charged with a criminal offence (cf. Eur. Court H.R., Lutz, Englert and Nölkenbockhoff judgments of 25 August 1987, Series A no. 123, p. 23, para. 56; p. 54, para. 35; p. 79, para. 35). The Commission notes that the District Administrative Authority and the Security Directorate in their respective decisions on the deportation of the applicant considered as a preliminary question whether the applicant had circumvented the border control. The Commission considers that, in deciding this issue, the authorities established the responsibility of the applicant according to administrative law. These findings do not amount to a statement of guilt regarding criminal responsibility in violation of Article 6 para. 2 (Art. 6-2) of the Convention (see No. 9295/81, X. v. Austria, Dec. 6.10.82, D.R. 30 p. 227). It follows that this part of the application is also 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) (A. WEITZEL)
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