Application No. 21510/93
by Ücler KOCAK
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 6 September 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
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 2 March 1993 by
Ücler KOCAK against Austria and registered on 11 March 1993 under file
No. 21510/93;
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 applicant is a Turkish citizen residing in Aksaray (Turkey).
In the proceedings before the Commission he is represented by
Mr. Helmut Blum, a lawyer practising in Linz.
On 14 June 1991 the applicant entered Austria without a valid
visa. On 20 June 1991 he registered his address with the police in
Linz.
On 21 June 1991 the applicant personally called on the Linz
Federal Police Directorate (Bundespolizeidirektion) and applied for a
visa. He was immediately arrested and his detention pending deportation
ordered by virtue of Section 57 para. 1 of the General Administrative
Procedure Act (Allgemeines Verwaltungsverfahrensgesetz - AVG) on the
grounds that he had circumvented the border control when he had entered
Austria and had indicated a fictitious address. The applicant had thus
committed administrative and criminal offences and there was a danger
that he might commit further offences and evade the deportation
procedure.
On 21 June 1991 the applicant appealed to the Independent
Administrative Senate for Upper Austria (Unabhängiger Senat für das
Land Oberösterreich).
On 25 June 1991 the applicant was deported.
On 28 June 1991 the Independent Administrative Senate for Upper
Austria declared the applicant's detention pending deportation unlawful
on the ground that, although the applicant's detention was not in
breach of substantive law, the Federal Police Directorate had
erroneously based its decision on Section 57 para. 1 of the General
Administrative Procedure Act, instead of giving a well reasoned
decision pursuant to Sections 58 and 60 of this Act. The Independent
Administrative Senate held that the Federal Police Directorate should
have stated explicitly the reasons for its assumption that there was
an imminent risk (Gefahr im Verzuge) that the applicant might commit
further offences and evade the deportation proceedings. In the absence
of such reasons, the decision of the Federal Police Directorate did not
constitute a valid legal basis for the applicant's deprivation of
liberty.
Thereafter the applicant filed a compensation claim in an amount
of 5 000 AS in respect of his unlawful arrest and detention from 21 to
25 June 1991.
By a judgment of 18 March 1992 the Linz Regional Court
(Landesgericht) dismissed the applicant's claim.
The Regional Court found that the applicant's detention was not
unlawful because of a possible procedural mistake, since there was no
violation of substantive law in his case. His detention had been
ordered in accordance with a procedure prescribed by law and did not
give raise to any compensation under Article 5 para. 5 of the
Convention or Section 7 of the law on the protection of the freedom of
persons (Personenfreiheitsschutzgesetz).
On 24 December 1992 the Linz Court of Appeal (Oberlandesgericht)
dismissed the applicant's appeal against this judgment. It confirmed
the Regional Court's view that, the form of the contested decision did
not affect in any way the lawfulness of the applicant's detention under
Section 5 para. 1 of the Aliens Police Act.
COMPLAINT
The applicant complains that the Austrian authorities have
violated his right to compensation as guaranteed by Article 5 para. 5
of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 March 1993 and registered on
11 March 1993.
By a letter of 2 May 1995 the Secretariat informed the
applicant's lawyer that it was intended to include the application in
the list of cases for examination by the Commission in the near future.
He was therefore requested to inform the Commission whether the
applicant wished to maintain his application and to submit a power of
attorney.
On 15 May 1995 the applicant's lawyer replied that he intended
to maintain the application on behalf of the applicant. He also
informed the Commission that he was unable to submit a power of
attorney in writing, since he could not contact the applicant who lived
in Turkey. He had, however, been orally authorised by the applicant
before his deportation to take all the necessary steps to defend his
legal interests.
REASONS FOR THE DECISION
The Commission notes that when the application was registered it
seemed that it had been lodged by the applicant himself as it was
written in the first person singular and the signature was illegible.
It subsequently became clear that the case had been lodged by a
lawyer and, in accordance with the Commission's usual practice, he was
requested to submit a power of attorney which is essential to establish
the validity of the application.
However, the applicant's representative has failed to provide
such authorisation from the applicant with whom he apparently has had
no contact for four years.
In these circumstances, the Commission considers that it is no
longer justified, in accordance with Article 30 para. 1 (c) of the
Convention, to continue the examination of the petition. Moreover, the
Commission finds no reasons of a general character affecting respect
for Human Rights, as defined in the Convention, which requires the
further examination of the application by virtue of Article 30 para.
1 in fine of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy