AS TO THE ADMISSIBILITY OF
Application No. 13826/88
by Tursun KARA
against Austria
The European Commission of Human Rights sitting in private on
8 February 1993, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
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 21 April 1988 by
Tursun Kara against Austria and registered on 3 May 1988 under file No.
13826/88;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to:
- the observations submitted by the respondent Government on
19 October 1990 and the observations in reply submitted by the
applicant on 28 January 1991;
- the Commission's decision of 3 September 1991 to postpone further
examination of the case until after the hearing in the Majerotto
case (No. 13816/88) on 16 October 1991;
- the Commission's decision of 16 October 1991 to adjourn further
examination of the case until other cases concerning the
reservation at issue have been considered;
Having deliberated;
Decides as follows:
THE FACTS
The facts agreed between the parties may be summarised as
follows.
The applicant is a Turkish citizen born in 1935 who had lived in
Austria between 1971 and 1985. He is represented by W.L. Weh, a lawyer
practising in Bregenz.
He submits complaints in relation to his detention prior to being
expelled to Turkey on 13 February 1985.
On 9 November 1984 an expulsion order (Aufenthaltsverbot) was
issued against the applicant by the District Authority (Bezirks-
hauptmannschaft) of Dornbirn under the Aliens Act (Fremdenpolizei-
gesetz) on the ground that he was suspected of a criminal offence under
Section 298 of the Penal Code (false allegations of a criminal
offence), having once before been convicted of such an offence in 1980.
On 20 December 1984 the Vorarlberg Directorate of Public Security
(Sicherheitsdirektion) confirmed the expulsion order which became
enforceable on 4 January 1985. The applicant's appeals to the
Constitutional Court (Verfassungsgerichtshof) and to the Administrative
Court (Verwaltungsgerichtshof) were subsequently rejected. Pending
these appeals he also requested the Constitutional Court and the
Administrative Court to order suspensive effect and applied to the
District Authority to stay the execution of the expulsion order at
least until the Constitutional Court had ruled on the request for
suspensive effect. However, on 16 January 1985 the District Authority
rejected his application, ordering him to leave the country before 22
January 1985. The Administrative Court subsequently granted suspensive
effect on 30 May 1985. However, by this time the applicant had already
been deported to Turkey.
Due to his hospitalisation in a psychiatric clinic, the applicant
himself did not receive the District Authority's decision of 16 January
1985. It was served on his lawyer who was not informed of the
applicant's hospitalisation. The applicant himself, therefore, was not
actually aware of the time-limit by which he was required to leave the
country. On 23 January 1985 the District Authority ordered his
detention in view of his expulsion (Schubhaft) under Section 5 of the
Aliens Act. This decision was again only served on his lawyer on
Friday, 25 January. On the same day the latter lodged an appeal
against the detention order which reached the District Authority on
Monday, 28 January, but was not submitted to the Directorate of Public
Security until 1 February 1985. The Directorate rejected the appeal by
a decision of 7 March 1985, which was notified to the applicant's
lawyer on 19 March 1985, more than one month after the applicant had
been expelled on 13 February 1985.
The applicant had been arrested on 9 February, following release
from the psychiatric hospital. His detention on the basis of the above
detention order of the District Authority had lasted 41/2 days, from 0.30
hours on 9 February to approximately 14.00 hours on 13 February.
During this period he had not been brought before any authority, and
he claims that he had been refused permission to contact his la
The Government contest the latter allegation. The applicant refers to
the testimony of two witnesses.
On 29 April 1985 the applicant complained to the Constitutional
Court of the detention, the detention order and the refusal of
suspensive effect of his remedies. On 17 June 1985 the Constitutional
Court declared the complaint inadmissible insofar as it was directed
against the detention because the detention was based on an
administrative decision and therefore did not constitute an act of
immediate administrative compulsion. It refused to deal with the
complaint against the detention order as confirmed by the Directorate
of Public Security as it considered that the complaint lacked
sufficient prospects of success. It observed that an administrative
decision could violate the constitutional right to personal liberty
only if it had no legal basis, if the law had been applied in a
perverse manner (denkunmögliche Gesetzesanwendung) or if it was
unconstitutional. Having regard to the Constitutional Court's case-law
there was no sufficient prospect of finding unconstitutionality in the
present case which therefore was referred to the Administrative Court.
This Court rejected the applicant's complaints by a decision of
30 September 1987 which was served on the applicant's lawyer on 21
October 1987. The Administrative Court considered that there had been
sufficient suspicion of the applicant having committed new criminal
offences and sufficient grounds for the administrative authority to
assume that he would not comply with the expulsion order. As regards
the applicant's complaint that the decision on his appeal had not been
taken speedily by the Directorate of Public Security, the
Administrative Court referred to Section 73 of the General Code of
Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz)
according to which the time limit for administrative decisions was six
months.
The applicant then brought a civil action against the State
(Amtshaftungsklage) claiming compensation for unlawful detention. In
this context he suggested that the civil courts should again seize the
Constitutional Court with the case as the Administrative Court's view
according to which a decision on an appeal against a detention order
could be taken within a period of six months was untenable under
Article 5 para. 4 of the Convention. However, on 8 April 1988 the
Regional Court (Landesgericht) of Feldkirch rejected the action
essentially on the ground that it was bound by the Administrative
Court's decision.
The applicant appealed against this decision and suggested a
reference to the Constitutional Court also on the ground that the
relevant provision of the Official Liability Act (Amtshaftungsgesetz)
was unconstitutional if it excluded a reference to the Constitutional
Court of allegations that an administrative act violated constitutional
rights.
The Innsbruck Court of Appeal (Oberlandesgericht) rejected the
appeal on 30 September 1988. It considered that the exclusion of the
possibility, in official liability proceedings, to refer the case to
the Constitutional Court on a point of alleged unconstitutionality did
not infringe Article 13 of the Convention because that point could also
be decided by the competent civil court itself. As regards the main
question whether the applicant's right to a speedy decision on the
lawfulness of his detention (Article 5 para. 4 of the Convention) had
been violated and whether for this reason he was entitled to
compensation under Article 5 para. 5 of the Convention, the Court left
it open whether Article 5 para. 4 was directly applicable in Austria
and had modified the provision in Section 73 of the General Code of
Administrative Procedure according to which administrative decisions
must be taken "without unnecessary delay". Article 5 para. 4 was
applicable only from the moment of actual arrest and would have been
violated only if it had been possible and appropriate for the
Directorate of Public Security to decide earlier on the applicant's
appeal and thereby to shorten his detention. Even taking into account
the fact that the applicant's appeal had been lodged 9 days before his
arrest, the fact that the Directorate's decision had not been handed
down during the five days in which the applicant was actually detained
did not constitute an unlawful delay. An appellate jurisdiction
required the period in question for the preparation of its decision
even in an urgent case, and it could not be held against it that during
the same period it had participated in the preparation of the
applicant's expulsion, a measure which had also led to a reduction of
the length of detention. After the expulsion the case had no longer
been urgent. Therefore the handling of the case had infringed neither
Article 5 para. 4 of the Convention nor Section 73 of the General Code
of Administrative Procedure. Hence the applicant's compensation claim
had to be rejected.
COMPLAINTS
The applicant complains under Article 5 para. 1 of the Convention
that the detention in view of his expulsion was unlawful and
disproportionate in the circumstances of the case.
The applicant complains of a violation of Article 5 para. 2 of
the Convention in that the detention order was not served upon him, but
only upon his lawyer whom he was refused to contact during his
detention. He claims that he was never informed personally of the
grounds for his detention.
The applicant complains of a violation of Article 5 para. 4 of
the Convention in that his appeal against the detention order was not
decided speedily, in particular not before his deportation, despite the
obvious urgency of the matter.
The applicant finally complains under Article 5 para. 5 and
Article 13 of the Convention that he did not have an effective remedy
by which he could claim compensation on the ground that in the
proceedings concerning his detention Article 5 para. 4 had been
violated. The competent civil court was bound by the decision of the
Administrative Court, which, however, was not competent to deal with
the alleged violation of a constitutional right while Section 11 of the
Official Liability Act excluded a reference to the Constitutional Court
for the purpose of obtaining a decision on this question.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 21 April 1988 and registered
on 3 May 1988.
On 2 July 1990 the Commission decided to give notice of the
application to the respondent Government and to invite them to submit
observations in writing on the admissibility and merits of the case
before 17 October 1990. Following an extension of the time-limit, the
Government submitted their observations on 19 October 1990. The
applicant replied, also after an extension of the relevant time-limit,
on 28 January 1991.
The Commission again considered the case on 3 September 1991 and
16 October 1991.
THE LAW
1. The applicant alleges a violation of Article 5 para. 1
(Art. 5-1) of the Convention.
Article 5 para. 1 (Art. 5-1) provides, so far as relevant, as
follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
f. the lawful arrest or detention of a person to prevent his
effecting an unauthorised entry into the country or of a person
against whom action is being taken with a view to deportation or
extradition."
The Commission recalls that, under this provision, the Convention
organs examine the lawfulness of the detention of "the person against
whom action is being taken with a view to deportation". However, the
review is limited to examining the legality of the detention, including
the lack of arbitrariness.
In the present case, the detention order was made on 23 January
1985. It was served on the applicant's representative on 25 January
1985. The representative lodged an appeal against it on the same day.
The Directorate of Public Security rejected the appeal on
7 March 1985. The decision was notified to the applicant's lawyer on
19 March 1985, and the applicant subsequently put the case before the
Constitutional and Administrative Courts.
The Government and the applicant are unanimous in their approval
of the system of notification of detention orders to representatives
rather than to individuals, as the appropriate appeals, if any, may
thus be made.
The applicant was detained for some four and a half days under
the detention order, from 0.30 hrs. on 9 February to approximately
14.00 hrs on 13 February 1985.
The Commission recalls that the Constitutional Court, in its
decision of 17 June 1985, observed that an administrative decision
could violate the constitutional right to personal liberty only if it
had no legal basis, if the law had been applied in a perverse manner,
or if it was unconstitutional. To this, the Administrative Court, on
30 September 1987, added that there had been sufficient suspicion of
the applicant having committed new criminal offences, and sufficient
grounds for the administrative authority to assume that he would not
comply with the expulsion order.
In the circumstances of the present case, the Commission finds
that there was a legal basis for the detention, namely the detention
order of 23 January 1985 in application of Section 5 of the Aliens Act.
Moreover, it cannot be said that the order was arbitrary.
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 alleges a violation of Article 5 para. 2 (Art. 5-2)
of the Convention in that his representative, but not he himself, was
informed of the reasons for his detention.
Article 5 para. 2 (Art. 5-2) of the Convention provides as
follows:
"Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and
of any charge against him."
However, the Commission is not required to decide whether or not
the facts alleged by the applicant in this respect disclose any
appearance of a violation of this provision as, under Article 26
(Art. 26) of the Convention, it may only deal with a matter after all
domestic remedies have been exhausted according to the generally
recognised rules of international law.
In the present case the applicant has not established that he has
put this complaint to any domestic authority. In particular, he failed
to raise this matter in his constitutional complaint of 29 April 1985.
Moreover, an examination of the case does not disclose the existence
of any special circumstances which might have absolved the applicant,
according to the generally recognised rules of international law, from
exhausting the domestic remedies at his disposal.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies in this respect, and this
part of the application must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
3. The applicant alleges a violation of Article 5 para. 4 (Art. 5-4)
of the Convention in that his appeal against the detention order was
not decided speedily, and in particular that it was not decided before
his deportation.
Article 5 para. 4 (Art. 5-4) provides as follows:
"Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his
release ordered if the detention is not lawful."
The Government consider that the effect of the Austrian
reservation to Article 5 (Art. 5) of the Convention is to exclude the
operation of Article 5 para. 4 (Art. 5-4) from the case altogether,
with the result that only Article 73 para. 1 of the General Code of
Administrative Procedure (Allgemeines Verwaltungsverfahrensgesetz)
applies. They underline that this provision states that decisions on
appeals must be taken within six months after they are received. In
the alternative, they submit that the effect of the reservation is
either (i) that a prior decision by an administrative authority (the
decision of the Dornbirn District Authority of 23 January 1985) is
sufficient justification for the detention (cf. Eur. Court H.R., Van
Droogenbroeck judgment of 24 June 1982, Eur. Court H.R., Series A no.
50, p. 23, para. 45), or (ii) that the decision of the Directorate of
Public Security of 7 March 1985 (which concerned the lawfulness of the
applicant's detention) complied with the requirements of Article 5
para. 4 (Art. 5-4) with respect to a "court".
The Government consider that the Directorate of Public Security in any
event decided the applicant's appeal against his detention order
"speedily".
The applicant, who considers that the Austrian reservation to
Article 5 (Art. 5) of the Convention is neither valid nor applicable,
considers that the delay caused by the Directorate of Public Security
was unconscionable, before, during and after the applicant's detention.
The Commission is not required to decide on the validity or
applicability of the Austrian reservation in the present case as this
part of the application is in any event inadmissible for the following
reasons.
The Commission notes that the applicant was detained from
0.30 hours on 9 February 1985 until approximately 14.00 hours on
13 February 1985, that is a total of some 41/2 days. The Directorate of
Public Security decided on the applicant's appeal against the detention
order on 7 March 1985, and the Constitutional Court rejected the
applicant's constitutional complaint on 17 June 1985. In the
circumstances of the present case, the Commission finds that there must
be considerable doubt as to whether the question of the lawfulness of
the applicant's detention was determined "speedily". However, the
Commission recalls that it has previously held that a review of
detention pending expulsion is not required by Article 5 para. 4
(Art. 5-4) of the Convention in circumstances where the period of
detention is shorter than that which would have been necessary for the
application of the procedure envisaged by Article 5 para. 4 (Art. 5-4)
(cf. No. 7376/76, Dec. 7.10.76, D.R. 7 p. 123; No. 7447/76, Dec.
13.12.76). The European Court of Human Rights confirmed this approach
in its judgment in the Fox, Campbell and Hartley case (judgment of 30
August 1990, Series A no. 182, p. 20 para. 45). The Commission has
held that, in connection with detention justified by Article 5 para.
1 (f) (Art. 5-1-f) of the Convention, a period of up to 10 days may
still fall within the period permissible under Article 5 para. 4
(Art. 5-4) of the Convention. In the present case, too, the applicant's
detention was substantively justified under Article 5 para. 1 (f)
(Art. 5-1-f). The specific period which falls to be considered is 41/2
days, that is, the period of the applicant's actual detention. The
Commission, having regard to all the circumstances of the case, finds
that this period is less than that which would be necessary even for
a speedy procedure in conformity with Article 5 para. 4 (Art. 5-4).
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.
4. The applicant also alleges a violation of Article 5 para. 5
(Art. 5-5) of the Convention.
The Commission recalls that Article 5 para. 5 (Art. 5-5) of the
Convention may only be invoked where the Convention organs or the
domestic authority have established a violation, either formally or in
substance, of one of the other provisions of Article 5 (Art. 5) (cf.
No. 6821/74, Huber v. Austria, Dec. 5.7.76, D.R. 6 p. 65). The
Commission has found above that there has been no violation of one of
the other provisions of Article 5 (Art. 5) in the present case; in the
proceedings in Austria, the Administrative and Constitutional Courts,
and the courts dealing with the applicant's official liability action,
found no violation of Article 5 (Art. 5), in form or in substance.
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.
5. The applicant also alleges a violation of Article 13 (Art. 13)
of the Convention. The Commission recalls that Article 5 para. 4
(Art. 5-4) is the lex specialis in relation to complaints under Article
5 (Art. 5) of the Convention. In any event, to the extent that any of
the applicant's complaints do not fall within the ambit of Article 5
para. 4 (Art. 5-4) of the Convention, the Commission finds that the
applicant has no "arguable" claim under the Convention which might
necessitate a remedy pursuant to Article 13 (Art. 13) of the Convention
(cf. Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series
A no. 131, pp. 23-24, paras. 52-58).
It follows that the applicant's complaints about a lack of
remedies are also manifestly ill-founded within the meaning of Article
27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H. C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy