AS TO THE ADMISSIBILITY OF
Application No. 12771/87
by Yusuf KARLIDAG
against Austria
The European Commission of Human Rights sitting in private
on 7 October 1987 the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
M.A. TRIANTAFYLLIDES
E. BUSUTTIL
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 27 January 1987
by Yusuf Karlidag against Austria and registered on 9 March 1987 under
file N° 12771/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
&_THE FACTS&S
The applicant is a Turkish citizen of Kurdish origin,
born in 1947 and at present domiciled in Turkey. He is represented by
Mr. Gottfried Waibel, a lawyer practising in Bregenz, Austria.
The applicant and his family had lived several years in
Austria when, on 11 November 1982, the District Authority (Bezirks-
hauptmannschaft) of Bregenz issued a permanent residence prohibition
(unbefristetes Aufenthaltsverbot) against him under Section 3 para. 1
in conjunction with Section 4 of the Immigration Control Act
(Fremdenpolizeigesetz BGBl. 75/1954). The reason stated was that he
had organised the illegal crossing of the Austrian-German border by
other persons ("im Bereich der deutsch-österreichischen Grenze als
Schlepper betätigt") and that he had been convicted of an offence
against the German Aliens' Act (Ausländergesetz) on that account by
a German court and had been expelled (abgeschoben) by the German
authorities to Turkey. The Austrian residence prohibition was
confirmed by the Vorarlberg Regional Directorate of Police
(Sicherheitsdirektion) on 13 December 1982. As the applicant
apparently did not appeal further to the Administrative Court
(Verwaltungsgerichtshof) or the Constitutional Court (Verfassungs-
gerichtshof), this residence prohibition has become final.
However, the applicant's family (his wife and three children)
continued to live in Bregenz. On 8 April 1986 the applicant therefore
applied to revoke the residence prohibition under Section 8 of the
Immigration Control Act (termination of the reasons which underlie the
residence prohibition), or, in the alternative, under Section 68 of
the Code of General Administrative Procedure (Allgemeines Verwaltungs-
verfahrensgesetz), which stipulates a general power of the authorities
to revoke administrative decisions which have not created a right for
anybody. He observed that his German sentence had, in the meantime,
been waived (erlassen) under Section 56 g of the German Criminal Code
(Strafgesetzbuch). He further observed that Section 3 of the
Immigration Control Act had been quashed by the Constitutional Court
as being unconstitutional for failure to deal with sufficient
precision with the question of respect for family life (decision
G 225/85 of 12 December 1985).
By letter of 22 April 1986 the District Authority of Bregenz
informed the applicant that it refused the revocation of the residence
prohibition as the grounds which had led to its imposition continued
to exist. The waiver of the German sentence did not remove that
sentence. The applicant's private and personal circumstances which he
had invoked did not justify the revocation of the residence prohibition.
The authority added that the applicant would be granted leave to enter
the Austrian territory for a period of three weeks in 1987 in order to
visit his family (Section 6 para. 1 of the Immigration Control Act).
The applicant challenged this decision by a complaint to the
Administrative Court. The Court rejected the complaint by a decision
of 11 June 1986 which was served on the applicant on 22 August 1986.
It held that the District Authority's letter was to be considered as
an administrative decision. However, this decision had been based on
the correct legal opinion that the reasons justifying the residence
prohibition continued to exist and that Section 8 of the Immigration
Control Act was therefore not applicable. The waiver of the German
sentence left the conviction and other consequences of the judgment
unaffected and it did not amount to an erasion of the conviction in
the criminal record (Tilgung). The fact that the Constitutional Court
had quashed Section 3 of the Immigration Control Act with effect from
30 November 1986 was irrelevant in the context of the present case.
From further correspondence with the District Authority and
the Federal Ministry of the Interior, it appears that the applicant
had travelled to Austria to visit his family. He asked for an
extension of his leave of entry beyond the three-week period granted
for this purpose and referred to the possibility of political
persecution in Turkey if he and his family returned there, because of
their Kurdish origin. It further appears from this correspondence
that the applicant had applied for political asylum in Austria for
this reason.
&_COMPLAINT&S
The applicant complains that the refusal to revoke the
permanent residence prohibition amounted to an unjustified
interference with his right to respect for his family life (Article 8
of the Convention). He claims that his family life is firmly
established in Austria as his family have lived there for more than
ten years and his three children visit Austrian schools. He further
observes that, in the circumstances, his family cannot be expected to
return to Turkey.
The applicant refers to the Constitutional Court's decision of
12 December 1985 by which Section 3 of the Immigration Control Act was
found to be unconstitutional for failure to take the respect of family
life sufficiently into consideration. However, the quashing of this
provision took effect only on 30 November 1986, and therefore the
provision in question, which was the basis of the measure taken
against the applicant, continued to be applicable in his case despite
the fact that it was in conflict with the requirements of Article 8 of
the Convention. In these circumstances the applicant had no possibility,
according to the case-law of the Constitutional Court (decisions Nos.
4718/64, 531/66, 8483/79), to challenge the constitutionality of
Section 3 of the Immigration Control Act. The applicant therefore
considers that he was not required to complain to the Constitutional
Court. He further claims that Section 8 of the Act, directly applied
in this case, also fails to take the family situation sufficiently
into account and thus, too, violates Article 8 of the Convention.
&_THE LAW&S
The applicant complains that the Austrian authorities' refusal
to revoke a residence prohibition issued against him interferes with
his right to respect for his family life as guaranteed by Article 8 (Art. 8) of
the Convention.
The Commission notes that the applicant's family, i.e. his
wife and three children who are not yet of age, have been lawfully
residing in Austria for more than ten years. Despite the residence
prohibition issued against the applicant, it appears that he has been
granted leave to enter Austrian territory for short periods for the
purpose of visiting his family. In these circumstances it can be
assumed that the applicant's family life is indeed established in
Austria.
The Commission further notes that the specific measure
complained of is the refusal to revoke a permanent residence prohibition
which was ordered in 1982. Although the applicant can no longer
complain of the original order, the Commission considers that he
is entitled to complain that the refusal interfered with his rights
under Article 8 para. 1 (Art. 8-1) of the Convention. A permanent residence
prohibition may become disproportionate with the lapse of time and in
the present case the applicant invokes a change of circumstances
which, in his view, justified his request for a revocation under
Article 8 (Art. 8) of the Convention.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant 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 failed to bring his
complaint before the Constitutional Court and has, therefore, not
exhausted the remedies available to him under Austrian law. 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 is true that the applicant claims that he could not
challenge the constitutionality of Section 3 of the Immigration
Control Act, as applied in his case, with regard to Article 8 (Art. 8) of the
Convention. In its decision of 12 December 1985 the Constitutional
Court had already examined this question and had, with effect from
30 November 1986, annulled Section 3 as lacking sufficient precision
with regard to the authorities' obligation to observe the requirements of
Article 8 (Art. 8) of the Convention, thus implying that until that date the
provision in question must be regarded as being in conformity with
constitutional law. However, it was not Section 3 but Section 8 of the Act
which was applied in the present case. The above decision of 12 December 1985
did not in any way prevent the applicant from claiming before the
Constitutional Court that Section 8, too, might raise problems as to its
conformity with Article 8 (Art. 8) of the Convention. He could even have
invoked that decision in support of his argument.
Moreover, it is not primarily the constitutionality of the
applicable provisions of the Immigration Control Act which is at issue
here, but their application in the concrete case. In a complaint
under Article 144 of the Federal Constitution the applicant could have
challenged the particular refusal to revoke the residence prohibition
and could have claimed that Section 8, or indirectly Section 3, of the
Act had been applied in his case in such a way as to violate his
rights under Article 8 (Art. 8) of the Convention. In this respect he could
have invoked the Constitutional Court's earlier case-law which
preceded the decision of 12 December 1985 and in which it had been
held that the Immigration Control Act must be interpreted in
conformity with Article 8 (Art. 8) of the Convention. The applicant could
have claimed that such an interpretation, prompted by Austrian
constitutional law, had not been adhered to in his case.
It follows that a complaint to the Constitutional Court cannot
be regarded as an ineffective remedy in the circumstances of the
applicant's case.
Accordingly the applicant has not complied with the condition
as to the exhaustion of domestic remedies laid down in Article 26 (Art. 26) and
his application must in this respect be rejected under Article 27
para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission
&_DECLARES THE APPLICATION INADMISSIBLE.&S
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)