AS TO THE ADMISSIBILITY OF
Application No. 20840/92
by Hasan MUTLU
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 29 June 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
G.B. REFFI
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 19 August 1992 by
Hasan Mutlu against Austria and registered on 23 October 1992 under
file No. 20840/92;
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 Turkish national, born in 1947 and residing
in Selzthal (Austria). Before the Commission he is represented by
Mr. W.L. Weh, a lawyer practising in Bregenz.
A. Particular circumstances of the case
On 2 April 1991 the Dornbirn District Administrative Authority
(Bezirkshauptmannschaft) referring to Section 3 of the Aliens Act
(Fremdenpolizeigesetz) imposed a residence prohibition
(Aufenthaltsverbot) valid until 2 April 1996 on the applicant. The
District Administrative Authority noted in particular that, between
1985 and 1990, the applicant had been convicted three times of having
caused bodily harm, and, between 1986 and 1990, several times of
administrative offences, including inter alia, drunken driving. The
applicant had been warned twice that a residence prohibition would be
imposed if he committed further offences. The District Administrative
Authority considered that the applicant's stay in Austria endangered
the public peace, order and security. As regards the applicant's
private and family situation the District Administrative Authority
noted that the applicant had been residing in Austria since 1971 and
was running an inn. It also noted that two of his daughters who were
no longer dependent on him were living in Austria and that a third
daughter, who was married and had two children was also living in
Austria. It further noted that the applicant's wife was living in
Turkey. The District Administrative Authority however concluded that
the applicant's private interests and family links did not outweigh the
public interest in imposing the residence prohibition.
On 8 August 1991 the Vorarlberg Security Directorate
(Sicherheitsdirektion) dismissed the applicant's appeal against the
residence prohibition.
It noted that on three occasions, in 1985 and in 1990, the
applicant had been convicted by criminal courts of having caused bodily
harm and sentenced to fines between 30 and 60 daily rates (Tagessätze).
Between 1986 and 1990 he had further been punished 8 times for
administrative offences, inter alia, twice in 1989 for drunken driving,
once in 1990 for driving without a driving licence and once in 1987 for
having caused a car accident and having failed to report the accident
to the authorities. All these offences were of a serious nature.
Moreover, on 11 June 1987 and 9 March 1989 the District Authority had
warned the applicant that a residence prohibition would be imposed if
he committed further serious offences. He had, nevertheless, continued
to commit administrative and criminal offences.
As regards the applicant's private and family situation, the
Security Directorate noted that the applicant had been living and
working in Austria since 1971 and had developed social and cultural
links to Austria. The Security Directorate noted further that in 1987
three of his daughters had joined him in Austria. They were adult, one
of the married with two children, the other two working and none of his
daughters living in Austria were dependent upon him. Moreover, the
applicant's wife with two more of his children was living in Turkey.
The Security Directorate concluded that his private interests and
family links did not outweigh the public interest in imposing the
residence prohibition as his stay in Austria endangered public peace,
order and security.
On 24 February 1992 the Constitutional Court refused to entertain
the applicant's complaint and referred the case to the Administrative
Court (Verwaltungsgerichtshof).
On 9 June 1992 the Administrative Court dismissed the applicant's
complaint. The Administrative Court found that the fines imposed in
the context of administrative proceedings concerned serious offences,
justifying as such a residence prohibition. Therefore, it was not
necessary to consider also the applicant's court convictions. The
Administrative Court held further that the respective authorities had
duly taken the applicant's private and family situation into account.
In the meantime, the applicant had moved to Selzthal (Tirol).
On 30 December 1992 the Lienz District Administrative Authority upon
the applicant's request, postponed the enforcement of the residence
prohibition until 30 June 1993. The residence prohibition has not yet
been enforced.
B. Relevant domestic law
According to Section 3 of the Austrian Aliens Act
(Fremdenpolizeigesetz), as in force at the relevant time,
administrative authorities may issue a residence prohibition against
an alien who, inter alia, was convicted by a court to a prison term
exceeding three months, or convicted more than once by a court, or
fined more than once for a serious administrative offence unless it
would contravene Article 8 of the Convention.
According to Section 6 para. 1 of the Aliens Act an alien on whom
a residence prohibition has been imposed has to leave Austria within
a week after the decision has become enforceable and must not re-enter
Austria without a specific permission during the period of the validity
of the residence prohibition. According to Section 6 para. 2 the
authority may postpone the enforcement of the residence prohibition on
grounds of equity (aus Billigkeitsgründen).
COMPLAINTS
The applicant complains under Article 8 of the Convention that
the residence prohibition constitutes an unjustified interference with
his private and family life. He submits that if he had to leave
Austria he would could no longer earn his living. Moreover, he would
no longer be able to maintain family contacts with the part of his
family living in Austria.
THE LAW
The applicant complains under Article 8 (Art. 8) of the
Convention that the residence prohibition would constitute an
unjustified interference with his private and family life.
Article 8 (Art. 8) of the Convention reads as follows:
"1. Everyone has the right to respect of his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic
society in the interests of national security, public
safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and
freedoms of others."
The Commission recalls that no right of an alien to enter or to
reside in a particular country, nor a right not to be expelled from a
particular country is as such guaranteed by the Convention. However,
in view of the protection of the right to respect for private and
family life afforded by Article 8 (Art. 8) of the Convention, the
expulsion of a person from a country in which his immediate family is
resident may give rise to issues under this provision (Beldjoudi v.
France, Comm. Report 6.9.90, para. 54, Eur. Court H.R., Series A
no. 234-A, p. 41).
The Commission recalls further that the question whether family
life exists is essentially a question of fact. Relationships between
adults do not necessarily attract the protection of Article 8 (Art. 8)
of the Convention without evidence of further elements of dependency,
involving more than the normal emotional ties (see No. 10375/83,
Dec. 10.12.84, D.R. 40 p. 196).
In the present case the Commission notes that the applicant has
been living and working in Austria since 1971 and has developed social
and cultural links to Austria. The Commission notes further that in
1987 three of his daughters joined him in Austria. However, these
daughters are adult, two of them are working and the third is married
and has two children. There is no indication in the applicant's
submissions that they are still dependent on him. Furthermore, his
wife with two more of their children are living in Turkey.
In these circumstances, the question arises whether or not the
residence prohibition complained of constitutes an interference with
the applicant's rights under Article 8 para. 1 (Art. 8-1) of the
Convention. However, the Commission does not have to decide this issue
as, assuming that there had been an interference, it was justified
under the terms of paragraph 2 of Article 8 (Art. 8-2) of the
Convention for the following reasons.
In order to be justified under the terms of paragraph 2 of
Article 8 (Art. 8-2) an interference must satisfy three conditions: it
must be "in accordance with the law", it must pursue one or more of the
aims enumerated in para. 2 (Art. 8-2) and it must be necessary in a
democratic society for that aim or those aims.
As regards the lawfulness of the measure complained of, the
Commission finds that the legal basis of the impugned residence
prohibition was Section 3 of the Aliens Act. There is no indication
that the residence prohibition was not issued in accordance with the
relevant law.
Moreover, the impugnated residence prohibition pursued a
legitimate aim within the meaning of Article 8 para. 2 (Art. 8-2),
namely the prevention of disorder and crime.
As regards the question whether the residence prohibition was
"necessary in a democratic society" for the above-mentioned aims, the
Commission recalls that it is for the Contracting States to maintain
public order, in particular by exercising their right, as a matter of
well-established international law and subject to their treaty
obligations, to control the entry, residence and expulsion of aliens
(Eur. Court H.R., Beldjoudi judgment of 26 March 1992, Series A
no. 234-A, p. 27, para. 74).
In the case at issue the Austrian authorities, when imposing the
residence prohibition upon the applicant, had regard to his serious
criminal recidivism. Having been warned twice about the possibility
of a residence prohibition, he had nevertheless continued to commit
offences. The Commission further notes that the competent authorities
duly considered the applicant's private and family situation.
The Commission, taking into account the margin of appreciation
left to the Contracting States, considers that the residence
prohibition complained of can reasonably be considered as "necessary
in a democratic society in the interest of ... public safety or ... for
the prevention of disorder and crime".
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