Application No. 20965/92
by Fahri ÖZCAN
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 30 November 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
G. RESS
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 9 September 1992
by Fahri ÖZCAN against Austria and registered on 19 November 1992 under
file No. 20965/92;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
3 December 1993, the observations in reply submitted by the
applicant on 25 January 1994 and the additional information
submitted by the applicant on 16 May 1994 upon the Rapporteur's
request;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows.
The applicant, born in 1968, is a Turkish national. When lodging
his application he was resident with his family, namely his wife, also
a Turkish second-generation immigrant, and their small child, at
Hohenems, Austria. After having been deported to Turkey on
19 October 1992 he returned to Austria on 11 March 1994 where he is now
resident again with his family. Before the Commission, he is
represented by Mr. W.L. Weh, a lawyer practising in Bregenz, Austria.
The applicant's parents settled in Austria in 1976 when the
applicant was eight years old.
On 7 May 1990 the Feldkirch Administrative Authority (Bezirks-
hauptmannschaft) issued a prohibition on residence (Aufenthaltsverbot)
in Austria until 31 December 2000 against the applicant and ordered him
to leave the country within one week.
The Administrative Authority referred to S. 3 paras. 1 and 2 (1),
(5), and S. 4 of the Austrian Aliens' Act (Fremdenpolizeigesetz). The
Authority observed that a prohibition on residence could be issued
against an alien, if there were reasons to assume that his further
residence endangered the public order. Such reasons were in particular
a sentence to imprisonment of more than three months, a sentence to
imprisonment on probation of more than six months, or more than one
conviction in respect of similar criminal offences. The participation
in the illegal entry or exit of another alien also constituted such a
reason.
The Administrative Authority noted that, in 1987 the applicant
had been convicted three times by the criminal courts, mostly of
offences against property of others, and respective fines had been
imposed on him. Further, on 17 January 1990 the Feldkirch
Administrative Authority had convicted the applicant of an offence
under the Border Control Act (Grenzkontrollgesetz) and imposed a fine
of AS 15,000. Furthermore, the Administrative Authority listed
altogether more than one hundred convictions of administrative
offences, mostly traffic offences, since 1984, the last decision dating
from 27 November 1989.
The Administrative Authority considered in particular that the
prohibition on residence was only justified, if the public interests
outweighed the negative consequences for the applicant and his family.
In this respect, the Authority noted that the applicant's family was
living in Vorarlberg, that the applicant was employed and intended to
marry. However, the applicant had been warned about the possibility
of a prohibition on residence once in 1985, twice in 1988 and again in
1989. He was adult and could be expected to earn his living in Turkey.
On 16 May 1991 the Vorarlberg Security Directorate (Sicherheits-
direktion) dismissed the applicant's appeal against the prohibition on
residence. The Directorate referred to the findings of the Feldkirch
Administrative Authority and further noted that in 1990 the applicant
had twice driven a car without driver's licence, and in one case caused
an accident and bodily harm to a child. The applicant had been
convicted in respect of both events, and respective fines of AS 5,000
and of fifty daily rates of AS 70 each had been imposed. The
Directorate considered that the applicant had again breached Austrian
law. The Directorate found in particular that the applicant's personal
situation, his lengthy stay in Austria, his marriage in July 1990 and
the birth of his child in 1991 constituted serious objections to the
prohibition on residence. Nevertheless, the interest to maintain the
public order outweighed these negative consequences.
On 30 September 1991 the Austrian Constitutional Court (Ver-
fassungsgerichtshof) refused to entertain the applicant's complaint,
and transferred it to the Austrian Administrative Court (Verwaltungs-
gerichtshof) for a decision.
On 9 March 1992 the Administrative Court dismissed the
applicant's complaint. The Administrative Court considered in
particular that the Vorarlberg Security Directorate had taken the
applicant's personal circumstances into account, but given more weight
to the public interest in ordering a prohibition on residence. This
decision did not appear to be unlawful. The Administrative Court
referred to the applicant's convictions, in particular to his
conviction for participation in the illegal entry of foreigners. The
frequent committal of serious criminal offences and the public interest
in preventing border control offences justified the assumption that the
public interest in imposing a prohibition on residence outweighed the
negative consequences on the applicant's private and family life. The
Administrative Court also stated that the applicant could exercise his
profession as weaver in other countries than Austria and thereby
maintain his family. His last conviction dating from 7 July 1990, no
change of attitude could be assumed. The decision was served on
20 April 1992.
On 19 October 1992 the applicant was deported to Turkey, while
his wife and their child stayed in Austria.
On 7 September 1993 the Feldkirch Administrative Authority
dismissed the applicant's request of 27 January 1993 to lift the
prohibition on residence against him.
On 15 November 1993 the Vorarlberg Security Directorate, on the
applicant's appeal, lifted the prohibition on residence against him
referring to S. 20 of the Aliens Act (Fremdengesetz) which had entered
into force on 1 January 1993. S. 20 para. 2 provides that no
prohibition on residence may be issued against an alien if it would
have been possible to grant him citizenship under S. 10 para. 1 of the
Citizenship Act (i.e. if he has been resident in Austria without
interruption for 10 years), before the relevant offences were
committed, except in case of offences punishable with more than five
years' imprisonment. This decision was served on the applicant's
lawyer on 23 November 1993.
On 11 March 1994 the applicant returned to Austria and joined his
family.
On 12 August 1994 the applicant was granted a residence permit,
valid until 23 April 1995.
COMPLAINTS
The applicant complains under Article 8 of the Convention that
the prohibition on residence and his deportation to Turkey violated his
right to respect for his family life. He submits in particular that,
following his deportation on 19 October 1992 he was separated from his
wife and small child until 11 March 1994 when he was allowed to return
to Austria.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 September 1992 and registered
on 19 November 1992.
On 7 September 1993 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 3 December 1993, after an extension of the time limit, the
Government submitted their observations. The observations in reply by
the applicant were submitted on 25 January 1994; additional
observations were submitted by the applicant on 16 May 1994.
REASONS FOR THE DECISION
The applicant complains under Article 8 of the Convention that
the prohibition on residence and his deportation to Turkey violated his
right to respect for his family life.
The Government submit in particular that the applicant can no
longer claim to be a victim, as the prohibition on residence against
him was lifted. The applicant contests this view and maintains that
his right to respect for his family life has been violated, as,
following his deportation to Turkey, he had been separated from his
wife and their small child for almost seventeen months.
The Commission notes that a prohibition on residence was issued
against the applicant and he was expelled to Turkey on 19 October 1992,
while his wife and small child stayed in Austria. However, the
prohibition on residence was lifted on 15 November 1993, in accordance
with provisions of the new Aliens Act, which had entered into force on
1 January 1993. The applicant returned to Austria on 11 March 1994 and
was granted a residence permit, valid until April 1995, on
12 August 1994.
In these circumstances the Commission considers that the
Convention issue underlying the present application has been resolved
within the meaning of Article 30 para. 1 (b) of the Convention.
Moreover, the Commission finds no reasons of a general character
affecting respect for Human Rights, as defined in the Convention, which
require 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) (A. WEITZEL)
Full & Egal Universal Law Academy