AS TO THE ADMISSIBILITY OF
Application No. 27646/95
by Ali ÖZDEMIR
against Austria
The European Commission of Human Rights (First Chamber) sitting
in private on 16 January 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 7 February 1995
by Ali ÖZDEMIR against Austria and registered on 19 June 1995 under
file No. 27646/95;
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 national, born in 1959 and residing
in Lauterach (Austria). Before the Commission he is represented by Mr.
W.L. Weh, a lawyer practising in Bregenz (Austria).
The facts of the case, as submitted by the applicant, may be
summarised as follows.
In April 1992 the applicant arrived in Austria. On 22 June 1992
he married an Austrian citizen in Vienna. Subsequently a residence
permit and a working permit were issued to the applicant. In August
1992 the applicant moved to Vorarlberg. His wife did not follow him.
On 27 June 1993 the Vorarlberg Public Security Authority
(Sicherheitsdirektion) questioned the applicant suspecting that he had
obtained his residence permit on the basis of a marriage of convenience
(Scheinehe). The applicant submitted that he had met his wife in
Vienna and married her after two months. He still had contact with her
and visited her in Vienna once a month. Before leaving Turkey his
marriage with his former wife had been dissolved. Three children had
been born to that marriage.
On 18 October 1993 the Public Security Authority in Graz heard
the applicant's wife. She stated that the marriage with the applicant
was one of convenience. She had received 20.000 As for having entered
into the marriage. The transaction had been organised by third persons
and she had seen the applicant only once before the marriage and on the
occasion of the marriage. Since then she has not seen her husband
again. The persons who had organised the marriage had also promised
to take care of the divorce proceedings and to carry the necessary
expenses, but had not kept their promise.
On 18 November 1993 the Vorarlberg Public Security Authority
heard the applicant again.
On 9 February 1994 the Bregenz District Administrative Authority
(Bezirkshauptmannschaft) annulled the applicant's residence permit.
The District Authority found that the applicant had entered into a
marriage of convenience for the purpose of obtaining a residence permit
and a working permit. The Authority noted in this respect the detailed
statements of his spouse and found that the applicant's own submissions
were not plausible. Furthermore the applicant had from April 1992
until 22 June 1992 stayed illegally in Austria. Under Section 11 of
the Aliens Act (Fremdengesetz) it had to annul a residence permit if
subsequently facts become known which would have lead to the refusal
of a residence permit. The District Authority found that it was
against the public interest and a gross violation of the law if a
foreigner staying unlawfully in Austria obtained surreptitiously a
residence permit.
On 24 March 1994 the applicant complained to the Administrative
Court (Verwaltungsgerichtshof). He submitted that his marriage had not
been dissolved and there were no reasons to assume that it was one of
convenience. Furthermore an annulment of the residence permit could
not be based on his previous unlawful stay in Austria.
On 21 July 1994 the Administrative Court dismissed the
applicant's complaint. The Administrative Court, referring to its
previous case-law, found that by entering into a marriage merely for
the purpose of obtaining a residence permit the person concerned abused
the law and his further stay in Austria would violate the public order.
In this context it was not relevant whether this marriage of
convenience formally continued to exist. The Administrative Court also
found that the assessment of evidence by the District Authority was
convincing. This decision was served on the applicant on
8 August 1994.
On 16 August 1994 the Bregenz District Administrative Authority
requested the applicant to leave Austria within 2 weeks failing which
a residence prohibition (Aufenthaltsverbot) would be imposed on him.
It appears that until now no residence prohibition has been
issued against the applicant and no other measures for his removal from
Austria have been taken.
COMPLAINTS
The applicant complains under Article 8 of the Convention that
the annulment of his residence permit violated his right to respect for
his private and family life. He submits that the District
Administrative Authority should not have arrived at the conclusion that
he had entered into a marriage of convenience as, in his view, such a
finding could only be the result of civil court proceedings for the
annulment of a marriage. He also relies on Article 12 of the
Convention.
THE LAW
1. The applicant complains that the annulment of his residence
permit violated his right to respect for his private and family life.
He relies on Article 8 (Art. 8) of the Convention which reads as
follows:
"1. Everyone has the right to respect for 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 (see No.
12461/86, Dec. 10.12.86, D.R. 51 pp. 258, 264). However, in view of
the right to respect for private and family life ensured by Article 8
(Art. 8) of the Convention, the exclusion of a person from a country
in which his immediate family resides may raise an issue under this
provision of the Convention (see Eur. Court H.R., Moustaquim judgment
of 18 February 1991, Series A no. 193, p. 18, para. 36; No. 13654/88,
Dec. 8.9.88, D.R. 57 pp. 287, 289).
Nevertheless, an applicant can only claim to be a victim of an
alleged violation of Article 3 (Art. 3) of the Convention, or, as in
the instant case, of Article 8, within the meaning of article 25 para.
1 (Art. 25-1) if an expulsion order has been made against him, the mere
refusal or annulment of a residence permit not being sufficient to meet
this requirement (Eur. Court H.R., Vijayanathan and Pusparajah judgment
of 27 August 1992, Series A no. 241-B, p. 87, para. 46).
In the present case, the Bregenz District Administrative
Authority annulled on 9 February 1994 the applicant's residence permit.
On 16 August 1994 the Bregenz District Administrative Authority
requested the applicant to leave Austria within two weeks failing which
a residence prohibition would be imposed on him. The applicant does
not submit that a residence prohibition had been issued against him or
that any other measure aimed at his removal from Austria has been
taken.
In these circumstances the applicant cannot claim to be a victim
of an alleged violation of Article 8 (Art. 8) of the Convention in
respect of the annulment of his residence permit.
It follows that this part of the application is incompatible
ratione personae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Lastly, the applicant complains that the annulment of his
residence permit violated his right under Article 12 (Art. 12) of the
Convention which provides as follows:
"Men and women of marriageable age have the right to marry and
to found a family, according to the national laws governing the
exercise of this right."
The Commission notes that the applicant married his wife
unhindered. Furthermore, the Commission finds that Article 12
(Art. 12) of the Convention does not impose a general obligation upon
Contracting States to respect a married couple's choice of the place
where they wish to found a family or to accept non-national spouses for
settlement to facilitate that choice (No. 14069/88, Dec. 14.12.88,
unpublished; No. 19788/92, Dec. 9.2.92, unpublished).
It follows that this aspect of the case is also 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) (C.L. ROZAKIS)
Full & Egal Universal Law Academy