AS TO THE ADMISSIBILITY OF
Application No. 22782/93
by Mesut and Göker GÜMÜSKAYA
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 28 September 1993
by Mesut and Göker GÜMÜSKAYA against Austria and registered on
18 October 1993 under file No. 22782/93;
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
27 October 1995 and the observations in reply submitted by the
applicants on 19 December 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicants are brothers and Turkish citizens. They were both
born in Vienna, Mesut Gümüskaya ("the first applicant") in 1972 and
Göker Gümüskaya ("the second applicant") in 1974. Before the
Commission the applicants are represented by Mr. T. Prader, a lawyer
practising in Vienna.
The facts of the case, as submitted by the parties, may be
summarised as follows.
Both applicants were brought up by their parents in Vienna. In
1979 the first applicant left his parents and lived with his
grandparents in Turkey. He came back in 1984 and terminated his school
in Vienna. Subsequently he worked as a manual worker for various
Austrian firms. The second applicant lived exclusively with his
parents and sister in Vienna and visited Turkey only for short holiday
visits. He attended school in Vienna and subsequently went on to a
commercial school. He worked as a manual worker, too.
On 4 October 1990 the Vienna Juvenile Court (Jugendgerichtshof)
convicted the second applicant of aggravated robbery (schwerer Raub),
serious bodily harm (schwere Körperverletzung) and burglary
(Einbruchsdiebstahl) and the first applicant of aggravated robbery and
attempted burglary. The court sentenced the second applicant to
twenty-one months' imprisonment, fourteen months of which were
suspended on probation, and the first applicant to eighteen months'
imprisonment, twelve months of which were suspended on probation.
The Juvenile Court established that in the course of the night
from 5 to 6 May 1990 the applicants, together with six other young
persons most of whom belonged to a gang, had forcibly taken away sums
of money between twenty and fifty schillings respectively from some
sixteen persons, a pair of sports shoes from another person and had
attempted to rob money and cigarettes from another three persons.
The court noted that the perpetrators had surrounded their
victims in a threatening manner and punched and kicked them when they
refused to hand over cash and other objects. One of the perpetrators
threatened the victims also with a knife. The court held further that
the applicants and five other accused had acted as look-outs while
another member of the group had been trying to force a cigarettes
vending machine.
In addition, the court found that, in the same night, the second
applicant and another accused had stolen a tennis racket from a
cabriolet and that later the second applicant had hit the head of two
persons with that racket.
When imposing the sentences the Juvenile Court noted that the
offences in question had been committed by an organised gang. As
regards the applicants, the court took into consideration, inter alia,
that they had so far no criminal record, had admitted the offences, had
not benefitted from the robbed objects, that there was nothing to show
that they had a tendency to committing criminal offences and that they
had a regular job. The court also noted that the applicants had not
belonged to the most aggressive perpetrators of the offences in
question and that, unlike four other accused, they had committed no
further offences after 6 May 1990.
On 23 April 1992 the Vienna Federal Police Authority (Bundes-
polizeidirektion) imposed, pursuant to Section 3 paras. 1 and 2 (1) of
the Aliens Act (Fremdenpolizeigesetz), a residence prohibition expiring
on 30 June 2002 on the applicants.
The Police Authority held, with reference to the applicants'
conviction of 4 October 1990, that their further stay in Austria
constituted a danger to public order and security and that the public
interest in imposing the residence prohibition was not outweighed by
the applicants' personal links to Austria.
The Police Authority also noted that on 18 July 1991 the first
applicant had been accused of being in the possession of drugs and on
18 October 1991 proceedings had been instituted on suspicion of his
having committed a theft. In the case of the second applicant the
Police Authority noted that on 18 November 1991 charges had been laid
against him for having caused bodily harm.
On 1 September 1992 the Vienna Security Authority (Sicher-
heitsdirektion) dismissed the applicants' appeals. It held that,
contrary to the applicants' allegations, the conviction of 4 October
1990 related to serious offences that could not be minimised.
The decisions further stated that the situation of the applicants
had been duly taken into account in that the residence prohibition had
been imposed on them for a limited period expiring in 2002. The
Security Authority also noted that the applicants' grandparents lived
in Turkey and that consequently they had family ties also in that
country.
As regards the case of the first applicant, the Security
Authority noted, in addition, that he had lived with his grandparents
and had attended school in Turkey from 1979 to 1984. The Security
Authority considered it irrelevant that the proceedings instituted on
18 October 1991 had been discontinued and recalled that the decision
to impose a residence prohibition on the first applicant had been based
on his conviction of 4 October 1990.
As to the case of the second applicant, the Security Authority
refused to wait for the outcome of the criminal proceedings that were
then pending against him and noted that he did not contest the facts
imputed to him in the context of those proceedings.
On 23 November 1992 the Vienna Juvenile Court convicted the
second applicant of having organised a gang, of serious bodily harm and
assault (gefährliche Drohung) and imposed a conditional five months'
prison sentence on him. At the same time the Juvenile Court extended
his period of probation relating to his conviction of 4 October 1990
to five years.
On 9 December 1992 the Constitutional Court (Verfassungs-
gerichtshof) decided not to deal with the applicants' complaints.
On 14 April 1993 the Administrative Court (Verwaltungs-
gerichtshof) dismissed the applicants' complaints. It noted that the
applicants did not contest that the measure complained of had been
taken in accordance with the relevant provisions of the Aliens Act and
held that the authorities had struck a correct balance between the
interests of public safety and maintaining order and peace as compared
to the private interests of the applicants in staying in Austria.
In the Administrative Court's view, the offences of which the
applicants had been convicted showed that they had little respect for
the physical integrity of other persons and therefore the public
interest had to prevail. The Administrative Court considered it
irrelevant that the applicants had an employment in Austria and that
their only family tie in Turkey was their grandfather.
On 3 February 1995 the Vienna Juvenile Court irrevocably remitted
a part of the sentence which it had imposed on the first applicant on
4 October 1990.
On 28 November 1995 the Federal Ministry of Interior instructed
the Austrian diplomatic missions to Turkey to issue tourist visa with
a year's validity to the applicants.
On 7 April and on 20 August 1997 the applicants' lawyer informed
the Commission that the aforesaid tourist visa had expired on
17 December 1996. The first applicant had unsuccessfully tried to
obtain a new permission to enter Austria and continued to live there
without any legal basis. As a result, he had no right to work in
Austria and was under the constant threat of being expelled. The
applicants' lawyer further informed the Commission that the second
applicant lived in Turkey and tried, with the assistance of another
lawyer, to have the residence prohibition in Austria lifted.
COMPLAINT
The applicants invoke Article 8 of the Convention considering
that in their cases the residence prohibition amounts to a
disproportionate and unjustified interference with their right to
respect for their private and family life.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 September 1993 and
registered on 18 October 1993.
On 27 June 1995 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
27 October 1995, after an extension of the time-limit fixed for that
purpose. The applicants replied on 19 December 1995.
THE LAW
The applicants complain that the residence prohibition which was
imposed on them amounts to a disproportionate and unjustified
interference with their right to respect for their private and family
life. They allege a violation of Article 8 (Art. 8) of the Convention
which provides as follows:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
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 contend that the interference complained of had
a legal basis, namely Section 3 paras. 1 and 2 (1) of the Aliens Act,
and that it pursued the legitimate aim of maintaining public safety and
order.
The Government further submit that the applicants were convicted
of unusually serious offences which they had committed as members of
a gang and that subsequently the second applicant was again convicted
of other serious offences. The Government therefore consider that the
applicants' further stay in Austria constituted a serious risk to
public safety and order and that the imposition of a residence
prohibition on them was therefore necessary within the meaning of
Article 8 para. 2 (Art. 8-2) of the Convention.
In the Government's view, the interference in question was
proportionate to the legitimate aim pursued as the Austrian authorities
had taken into account the applicants' age and had imposed a residence
prohibition on them only for a limited period. Furthermore, the
respondent Government refer to the fact that the first applicant spent,
while he was a child, five years in Turkey and that the second
applicant did not claim that he did not speak Turkish.
Finally, the Government submit that the applicants are not
married and have no children, and that they can reasonably be expected
to find in their home country a similar job as they had in Austria.
The applicants admit that they violated Austrian law while
belonging to a juvenile gang. They explain that they were members of
the gang, similarly as it is the case of many other young persons both
in the cities and in the countryside, because of the feelings of
resentment towards the recognized values of the society which is a
characteristic feature of transition from puberty to early adulthood.
They contend that their membership in the gang was not of a lasting
character and that they played only a subordinate role in it.
In the applicants' view, their conviction of 4 October 1990,
account being taken of their age and the circumstances under which they
committed the offences, does not justify the conclusion that they
represent a serious and lasting risk to public safety and order in
Austria.
In particular, the applicants contend that their acting as such
was not particularly serious and that it formally constituted an
aggravated robbery under Austrian law because the offences had been
committed by a juvenile gang a member of which had threatened the
victims with a knife.
They further point out that they were convicted of attempted
burglary on the ground that they had acted as look-outs while another
member of the group had tried to force a cigarettes vending machine
with a knife. The second applicant contends that he did not inflict
serious injuries on anybody but that his acting was formally qualified
as causing serious bodily harm because the injuries were inflicted by
three perpetrators acting together.
The applicants therefore consider that their acting in the night
to 6 May 1990 did not constitute, in its very substance, particularly
serious offences.
The applicants consider it irrelevant in the circumstances of
their case whether or not they speak Turkish and whether or not they
are married. They conclude that the decision to impose a residence
prohibition on them was not proportionate to the aim pursued.
In addition, the second applicant objects that the decision to
impose a residence prohibition on him was based exclusively on his
conviction of 4 October 1990. He therefore submits that his subsequent
conviction of 23 November 1992 should not be taken into consideration
when deciding on his application.
The Commission considers, in the light of the parties'
submissions, that the case raises complex issues of law and of fact
under the Convention, the determination of which should depend on an
examination of the merits of the application. The Commission concludes
therefore, that the application is not manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No
other grounds for declaring it inadmissible have been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy