Application No. 21818/93
by Ibrahim SATAR
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 4 May 1993 by
Ibrahim Satar against Austria and registered on 11 May 1993 under file
No. 21818/93;
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
19 August 1994 and the observations in reply submitted by the
applicant on 19 October 1994;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the parties, may be
summarised as follows.
The applicant is a Turkish citizen, born in 1944, who has been
residing since 1971 in Vorarlberg. The applicant's wife moved in 1978
to Austria, and their three children were all born in Austria. In the
proceedings before the Commission, the applicant is represented by
Mr. W. Weh, a lawyer practising in Bregenz.
A. Particular circumstances of the case
On 4 February 1991 the Bregenz District Administrative Authority
(Bezirkshauptmannschaft) issued a residence prohibition against the
applicant for the period until 31 December 1995. The Authority found
that the applicant, since 1985, had repeatedly committed serious
administrative offences, namely drunken driving of a motor vehicle and
other related traffic offences. The Authority further considered that
the withdrawal of the applicant's driving licence could not alter its
decision. It also noted that no family relations in Austria were known.
On 9 August 1991 the Vorarlberg Police Directorate (Sicherheits-
direktion) dismissed the applicant's appeal. It emphasised that the
applicant had already been warned in 1985 following a conviction for
drunken driving of his car that a prohibition on residence would be
imposed upon him, if he committed further offences. On 6 July 1990,
however, the applicant again had driven his car under the influence of
alcohol and had even caused an accident. Furthermore, the Directorate
considered that the applicant's interests in staying, his family ties
in Austria and the lack of relations to Turkey were outweighed by the
pressing need to protect public safety.
On 15 November 1991 the Constitutional Court (Verfassungs-
gerichtshof), upon the applicant's request, granted a stay of execution
of the prohibition on residence.
On 24 February 1992, however, the Constitutional Court declined
to entertain the applicant's complaint as not offering sufficient
prospects of success, and referred the case to the Administrative Court
(Verwaltungsgerichtshof).
On 8 October 1992 the Administrative Court dismissed the
applicant's appeal. The Administrative Court considered in particular
that the applicant had already been warned that a prohibition on
residence would be imposed upon him, if he committed further offences.
Moreover, in the circumstances of the present case, the considerations
relating to the preservation of public security outweighed the
considerations concerning the applicant's family life.
The decision was served on 4 November 1992.
On 5 February 1993 the Bregenz Administrative Authority dismissed
the applicant's request of 27 January 1993 to lift the prohibition on
residence against him.
On 18 June 1993 the Vorarlberg Security Directorate
(Sicherheitsdirektion), on the applicant's appeal, lifted the
prohibition on residence against him, pursuant to S. 20 of the Aliens
Act (Fremdengesetz) which had entered into force on 1 January 1993.
The Directorate found that, in accordance with the new legislation, a
prohibition on residence could not be issued in the applicant's
situation as he has been resident in Austria without interruption for
ten years before the relevant offences were committed. This new
legislation had to be taken into account when deciding on a request to
lift a prohibition on residence issued before 1 January 1993.
It appears that administrative proceedings regarding the
applicant's residence permit are still pending.
Moreover, on 8 May 1994 the Bregenz Administrative Authority
imposed a fine amounting to AS 3,000 upon the applicant for having
violated, between 28 May 1993 and 3 May 1994, the relevant provisions
of the Aliens Act on the ground that he had stayed in Austria without
a residence permit. Appeal proceedings are still pending.
B. Relevant domestic law
Under Section 3 of the Austrian Aliens' Act (Fremdenpolizei-
gesetz), in force until 31 December 1992, administrative authorities
could issue a prohibition on residence against any alien who, inter
alia, was convicted more than once for serious administrative offences,
unless such an order would contravene Article 8 of the Convention.
S. 20 para. 2 of the Aliens Act, which entered into force on
1 January 1993, 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.
COMPLAINTS
The applicant complains under Article 8 of the Convention about
an alleged interference with his right to respect for his family life.
He contends that the measure complained of was not necessary in a
democratic society, as required by Article 8 para. 2 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 4 May 1993 and registered on
11 May 1993.
On 7 April 1994 the Commission decided to communicate the
application to the respondent Government for observations on the
admissibility and merits.
On 19 August 1994, after an extension of the time limit, the
Government submitted their observations. The observations in reply by
the applicant were submitted on 19 October 1994.
REASONS FOR THE DECISION
The applicant complains under Article 8 of the Convention that
the prohibition on residence issued against him violated his right to
respect for his family life.
The Government consider that the application should be struck off
the Commission's list of cases. They submit in particular that the
applicant can no longer claim to be a victim of a violation of his
right to respect for his family life, as the prohibition on residence
against him was lifted. They point out that the question of his future
residence permit will decided upon in the context of further
administrative proceedings which are still pending before the Austrian
authorities.
The applicant contests this view and maintains that his right to
respect for his family life has been violated. He considers that he
continues to be affected by the residence prohibition as long he has
not been granted a residence permit.
The Commission notes that in 1991 a prohibition on residence
until 31 December 1995 was issued against the applicant. This decision
was not enforced, and the applicant continued living in Austria. In
May 1993 his request that the prohibition on residence be lifted was
granted, in accordance with the new Aliens Act, which had entered into
force on 1 January 1993. Thus, the measure complained of under
Article 8 para. 1 of the Convention, namely the residence prohibition
issued in 1991 has meanwhile been set aside by the Austrian
authorities. In this context, the Commission observes that to the
extent that the question of the applicant's residence permit is
examined in separate proceedings which are still pending, any
complaints under Article 8 of the Convention appear premature.
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