AS TO THE ADMISSIBILITY OF
Application No. 20821/92
by Christoph HABERER
against Austria
The European Commission of Human Rights sitting in private
on 7 April 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
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 9 September
1992 by Christoph HABERER against Austria and registered on 19
October 1992 under file No. 20821/92;
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 German citizen, born in 1961. He has
studied law in Austria and is a social worker advising drug
addicts. Since 1971 he has been residing in Austria.
On 13 March 1988 the Bregenz District Court (Bezirksgericht)
convicted the applicant of offences under the Drugs Abuse Act.
On 3 July 1990 the Feldkirch Regional Court (Landesgericht)
again convicted him of smuggling and unlawful possession of drugs
and sentenced him to twelve months' imprisonment. Part of the
sentence was suspended on probation. This suspension was later
quashed.
On 23 January 1991 the Bregenz District Administrative
Authority (Bezirkshauptmannschaft), in accordance with S. 3 of
the Austrian Aliens' Act (Fremdenpolizeigesetz), issued a
residence ban for an indefinite period against the applicant, as
he had been sentenced to a prison term exceeding three months.
The Authority, having also regard to the applicant's
administrative criminal record, found that his private interests
to stay in Austria were outweighed by the public interest in the
prevention of disorder and crime. In this respect the Authority
noted in particular that the applicant had no family links in
Austria.
Under Section 3 of the Austrian Aliens' Act, administrative
authorities may issue a residence ban against any alien who,
inter alia, was convicted to a prison term exceeding three months
or has been fined more than once for serious administrative
offences unless it would contravene Article 8 of the Convention.
On 12 April 1991 the Vorarlberg Police Directorate
(Sicherheits-direktion) confirmed in detail the above decision.
It also took into account that the applicant had recently been
fined for driving his motor vehicle although his licence had been
withdrawn.
On 24 February 1992 the Constitutional Court (Verfassungs-
gerichtshof) declined to entertain the applicant's
constitutional complaint for the lack of sufficient prospects of
success, and referred the matter to the Austrian Administrative
Court (Verwaltungs-gerichtshof).
On 20 July 1992 the Administrative Court dismissed the
applicant's complaint. The Administrative Court considered that
the respective authorities had duly taken the applicant's social
and cultural links to Austria into account and correctly found
that his private interests were outweighed by his recidivism and
his administrative criminal record.
In February 1994 the applicant was still residing in
Bregenz.
COMPLAINTS
The applicant complains under Article 8 of the Convention
that his expulsion to Germany amounts to a violation of his right
to respect of his private life. He refers to his lengthy stay in
Austria.
THE LAW
The applicant complains under Article 8 (Art. 8) of the
Convention about the residence ban imposed upon him on 23 January
1991.
The Commission recalls that the Convention does not grant
foreigners a right of residence in a particular State and that
the Contracting States have the right to control the entry,
residence and expulsion of aliens (see, Eur. Court H.R.,
Vilvarajah judgment of 30 October 1991, Series A no. 215, p. 34,
para. 102).
However, a residence ban imposed upon a foreigner, may
interfere with his right to respect for his private life, and
thus, in certain circumstances, give rise to an issue under
Article 8 (Art. 8), if it was not in accordance with Article 8
para. 2 (Art. 8-2) of the Convention.
In the present case the measure complained of had a legal
basis in Austrian law, namely S. 3 of the Aliens' Act, and was
aimed at "the prevention of disorder and crime", a legitimate aim
under Article 8 para. 2 (Art. 8-2) of the Convention.
As regards the question whether the interference complained
of was "necessary in a democratic society", the Commission
recalls that this phrase implies the existence of a pressing
social need. However, the Contracting States enjoy a certain
margin of appreciation in assessing whether such a need for an
interference exists, but it goes hand in hand with European
supervision (see, Eur. Court H.R., Funke judgment of 25 February
1993, Series A no. 256 A, p. 24, para. 55).
The Commission finds that the competent Austrian authorities
duly took the applicant's personal interests in remaining in
Austria into account, namely the length of his residence and his
social and cultural links to Austria. They found that, having
regard to the applicant's recidivism in drug offences and his
further record of administrative criminal offences and the fact
that the applicant had no family ties within Austria, the public
interest in imposing the residence ban outweighed his interest
in staying.
In these circumstances, the Commission considers that there
are relevant and sufficient reasons for the residence ban
challenged by the applicant. Weighing the applicant's personal
interests including his possibly forced return to Germany, and
the public interests at stake, the Commission, taking into
account the State's margin of appreciation, finds no appearance
of a violation of Article 8 (Art. 8) of the Convention.
It follows that the application is 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)
Full & Egal Universal Law Academy