AS TO THE ADMISSIBILITY OF
Application No. 16714/90
by Hasan KOSE
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 10 February 1993, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
G.B. REFFI
Mrs. M.F. BUQUICCHIO, Secretary to the First 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 23 May 1990 by
Hasan Kose against Austria and registered on 13 June 1990 under file
No. 16714/90;
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 who, until his deportation on
30 October 1987, lived in Frastantz in Vorarlberg, Austria. He is
represented before the Commission by Mr. W. L. Weh, a lawyer practising
in Bregenz. The facts of the application as submitted by the
applicant's representative may be summarised as follows.
On 5 October 1987 the Feldkirch District Authority (Bezirkshaupt-
mannschaft) ordered the applicant's provisional detention pursuant to
Section 5 para. 1 of the Aliens Act (Fremdenpolizeigesetz) on the
ground that a residence prohibition (Aufenthaltsverbot) had been issued
by the same authority on 31 July 1986, that the applicant's appeals to
the Vorarlberg Directorate of Public Security (Sicherheitsdirektion)
and to the Constitutional Court (Verfassungsgerichtshof) and
Administrative Court (Verwaltungsgerichtshof) had been unsuccessful,
that the applicant had been ordered on 26 June 1987 to leave Austrian
territory within one week, that he had been in Austria unlawfully since
13 June 1987 (seven days after he had received the Administrative
Court's decision) and that his provisional detention was necessary in
order to ensure that he left the country. The applicant was detained
on the same day and deported on 30 October 1987.
The applicant's appeal to the Vorarlberg Directorate of Public
Security was rejected on 19 November 1987 on the ground that, given
that the applicant had not merely remained in the country without a
residence permit, but had stayed notwithstanding a valid residence
prohibition, it was clearly in the interests of public order and
security to remove such an alien. The Constitutional Court, by
decision of 25 February 1988, declined to deal with the applicant's
constitutional complaint on the ground that such a complaint was not
excluded from the competence of the Administrative Court, and that
there were no specific constitutional questions to be answered.
Moreover, the application had no prospect of success.
The applicant's complaint to the Administrative Court was
dismissed on 18 October 1989. The Administrative Court noted that some
of the applicant's complaints were not related to the procedural
matters at issue and continued:
(German)
"Unter dem Gesichtspunkt einer inhaltlichen Rechtswidrigkeit des
angefochtenen Bescheides macht der Beschwerdeführer geltend, es
liege keine der Voraussetzungen des §5 Abs. 1 FrPolG vor, weil
der alleinige Aufenthalt des Beschwerdeführers in Österreich noch
kein unmittelbar zu beführchtendes strafbares Verhalten
darstelle. Der Beschwerdeführer übersieht dabei, daß nach der
Judikatur des Verwaltungsgerichtshofes ein Fremder, der sich
entgegen einem aufrechten Aufenthaltsverbot monatelang unerlaubt
im Bundesgebiet aufhält, sehr wohl ein Verhalten setzt, welches
eine Gefahr für die öffentliche Ruhe, Ordnung und Sicherheit
darstellt, weil damit der Tatbestand nach §14 Abs. 1 FrPolG
verwirklicht wird und dabei von einer Geringfügigkeit des
rechtswidrigen Verhaltens keine Rede sein kann (vgl. dazu die hg.
Erkenntnisse vom 29. März 1989, Zl. 87/01/0249, vom 27. Mai 1987,
Zl. 87/001/0029, und vom 13. Mai 1987, Zl. 86/01/0226).
Da schließlich auch eine Antragstellung nach §8 FrPolG den
im Einzelfall gebotenen Vollzug eines Aufenthaltsverbotes
durch Verhängung der Schubhaft nicht zu hindern vermag,
weil sonst jegliche Zwangsmaßnahme gemaß §5 FrPolG durch
eine Antragstellung gemaß §8 leg. cit. von vornherein
unterlaufen werden könnte,haftet dem angefochtenen Bescheid
auch die behauptete inhaltliche Rechtswidrigkeit nicht an.
Die Beschwerde war daher gemäß § 42 Abs. 1 VwGG als
unbegründet abzuweisen".
(Translation)
"In connection with substantive illegality of the decision
challenged, the complainant alleges that none of the conditions
of Section 5 para. 1 of the Aliens Act is met as the applicant's
mere presence in Austria cannot constitute a direct risk of
criminal conduct. The complainant fails to appreciate that an
alien who remains for months on Austrian territory
notwithstanding a subsisting residence prohibition can indeed be
seen to be behaving in a way which constitutes a danger for
public peace, order and security, as the factual elements for the
offence under Section 14 para. 1 of the Aliens Act are thereby
met, and there can be no question of the "de minimis" character
of the illegal behaviour (cf. decisions of this court of 29 March
1989, No. 87/01/0429, of 27 May 1987, No. 87/01/0009, and of 13
May 1987, No. 86/01/0226).
Finally, as an application under Section 8 of the Aliens Act
cannot remove the necessity in an individual case of enforcing
the residence prohibition (as every measure of compulsion under
Section 5 of the Aliens Act could thereby be undermined by an
application under Section 8), the decision challenged is not
tainted by the alleged substantive illegality. The complaint
must therefore be rejected pursuant to Section 42 para. 1 of the
Administrative Court Act".
COMPLAINTS
The applicant alleges a violation of Article 5 of the Convention.
He considers that the Austrian aliens authorities issue detention
orders far too freely, in circumstances where there is no necessity for
a detention order.
He considers that the one-week period provided for in Section 6
of the Aliens Act in which an alien against whom a residence
prohibition has been made must leave the country was not respected.
He states that the criminal proceedings which were the reason for the
residence prohibition in the first place had been re-opened, so that
he could reasonably expect the residence prohibition to be lifted. The
documents concerning the residence prohibition do not form part of the
present application and have not been submitted.
The applicant submits that compliance with domestic law is not
sufficient to constitute compliance with Article 5 para. 1 (f) of the
Convention, but that domestic law must be particularly clear and the
discretion retained by States must be particularly narrow. He
that Section 5 of the Aliens Act does not comply with these
requirements, nor the requirement of foreseeability.
THE LAW
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 the lawfulness of detention is a
requirement laid down in Article 5 (Art. 5) of the Convention.
However, the review of the Convention organs is limited to examining
whether there was a legal basis for the detention and whether the
decision to place a person in detention may or may not be described as
arbitrary in light of the facts of the case (cf. Zamir v. the United
Kingdom, Comm. Report 11.10.83, para. 87, D.R. 40 p. 42, 55; Kolompar
v. Belgium,
No. 11613/85, Comm. Report 28.2.91, p. 13, to be published in
Eur. Court H.R., Kolompar judgment of 24 September 1992, Series A
no. 235-C).
The Commission finds that there was a legal basis in Austrian law
for the detention, namely the detention order of 5 October 1987 under
Section 5 of the Aliens Act. The question remains whether,
notwithstanding that legal basis, it can be seen to be arbitrary.
The applicant points to various aspects of the case which, he
alleges in substance, indicate that the detention was arbitrary. In
particular, he considers that the one week period of notice provided
for in Section 6 of the Aliens Act was not respected, and that as the
criminal proceedings which had been at the base of the residence
prohibition had been re-opened, the residence prohibition should in any
event have been lifted.
As to the question of the period of notice to be given under
Section 6 of the Aliens Act, the Commission notes that the provisional
detention order of 5 October 1987 recited that the decision of the
Administrative Court concerning the residence prohibition had been
served on the applicant and his detention became unlawful one week
thereafter, on 13 June 1987, and that on 26 June 1987 the applicant had
been order to leave Austria within one week. As the applicant was
detained on 5 October 1987, it is not clear in what way the period of
one week was not respected.
As to the effect of the re-opening of the criminal proceedings
on the detention order, the Commission notes that the domestic
authorities relied in the proceedings on the residence prohibition and
the applicant's subsequent residence in Austria as the ground for the
detention and deportation. The fact that there may have been some
alteration to the state of the criminal proceedings which preceeded the
residence prohibition (and details of which have not been submitted)
does not affect the legal basis for the detention order, nor can it
make the detention arbitrary.
The Commission finds that there was a legal basis for the
applicant's detention and that the detention was not arbitrary.
Accordingly the detention complied with the provisions of Article 5
para. 1 (f) (Art. 5-1-f) 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) (J.A. FROWEIN)
Full & Egal Universal Law Academy