AS TO THE ADMISSIBILITY OF
Application No. 21630/93
by Yao Min SUN
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 15 December 1992
by Yao Min Sun against Austria and registered on 7 April 1993 under
file No. 21630/93;
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 Chinese citizen, born in 1971. He is
currently living in Wenzou/China. Before the Commission, he is
represented by Mr. K.-P. Schrammel, a lawyer practising in Vienna.
The facts, as they have been submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
On 6 February 1991 the Vienna Regional Court (Landesgericht)
convicted the applicant and four other co-accused under S. 14
subpara. 2 of the Aliens Act (Fremdenpolizeigesetz) of having, from May
to December 1990, professionally organised and abetted the illegal
entry (Schlepperei) of 30 aliens. He was sentenced to a four months'
prison term, suspended on probation.
On 14 February 1991 the Vienna Federal Police Authority (Bundes-
polizeidirektion) issued a residence prohibition against the applicant
for an indefinite period. The Authority based its decision on
S. 3 subpara. 2 (5) of the Aliens Act. It noted that the applicant was
living with his parents in Austria since 1983 and that he was working
in their restaurant and that he had been convicted under S. 14 subpara.
2 of the Alien's Act. The Authority considered that imposition of a
residence prohibition on the applicant was necessary in the public
interest as the organisation of illegal entry of aliens into Austria
severely obstructed the police authorities' possibility to control the
movements of aliens. The Authority, weighing the public interests at
stake and the applicant's interest in staying, found that the
prevention of further crimes necessitated the applicant's expulsion and
that his private interests did not outweigh the public interest in
imposing the residence ban.
On 2 July 1991 the Vienna Federal Security Authority (Sicher-
heitsdirektion) dismissed the applicant's appeal. It noted that,
beside his conviction of organising and abetting the illegal entry of
aliens, the applicant had already been convicted in 1990 of illegally
using identity documents of third persons (Gebrauch fremder Ausweise).
It pointed at the utmost public interest in preventing such offences
as committed by the applicant and, moreover, took into consideration
the professional way in which he had organized the illegal entry of
aliens. The Federal Security Authority found in particular that the
applicant's offences were not just a one time lapse but constituted a
serious infringement of the public interest in securing an effective
control over immigration and movement of aliens and the prevention of
their exploitation. Thus, the applicant's important private and family
interests in staying and the lack of his links with China were clearly
outweighed by the eminent public interest at stake.
On 9 June 1992 the Constitutional Court (Verfassungsgerichtshof)
declined to entertain the applicant's complaint on the ground of no
sufficient prospects of success and referred the case to the
Administrative Court (Verwaltungsgerichtshof).
On 4 September 1992 the Administrative Court, confirming the
reasoning of the administrative authorities, dismissed the applicant's
complaint. The Administrative Court referred to its previous case-law
according to which the organisation and abetting of illegal entry of
aliens interfered with the correct implementation of the Aliens Act and
caused considerable costs for the Republic stemming from the removal
of the aliens who had been brought illegally into the country.
Furthermore, the exploitation of aliens who wished to be brought
illegally to Austria by the organisers of such transports could only
be effectively prevented by imposing residence prohibitions on the
latter.
The applicant was meanwhile expelled to China.
B. Relevant domestic law
Under S. 3 subpara 2 (5) of the Aliens' Act (Fremdenpolizei-
gesetz), as in force at the material time, administrative authorities
may issue a residence prohibition against an alien who, for his own
benefit, was involved in abetting and organising the illegal entry of
aliens.
Under S. 14 subpara. 2 of the Aliens' Act, everyone who, in a
professional manner, abets and organises the illegal entry of aliens,
shall be liable to up to 3 years' imprisonment.
COMPLAINTS
The applicant complains under Article 8 of the Convention that
the Austrian authorities, when expelling him to China, did not have
sufficiently regard to his family life. He submits, in particular,
that the expulsion was not necessary in a democratic society, as his
conviction had been sufficient to prevent him from committing further
offences.
THE LAW
The applicant complains under Article 8 (Art. 8) of the
Convention about his expulsion to China. He submits that this measure
was not necessary in a democratic society, and thus constituted an
unjustified interference with his right to respect of his family life.
Article 8 (Art. 8) of the Convention, as far as relevant,
provides as follows:
"1. Everybody has the right to respect for his private and
family life...
2. There shall be no interference by a public authority with
the exercise of this right except such as in accordance with the
law and is necessary in a democratic society ... for the
prevention of disorder and crime ..."
The Commission considers that the applicant's expulsion to China
amounted to an interference with his right to respect for his private
and family life (see, Eur. Court H.R., Abdulaziz, Cabales and
Balkandali judgment of 28 May 1985, Series A no. 94, pp. 32-33, para.
62-65; Beldjoudi judgment of 26 March 1992, Series A no. 234-B, p. 25,
para. 67). In this respect, the Commission notes that the applicant
had been living for eleven years together with his parents in Austria.
Such an interference violates Article 8 (Art. 8) of the
Convention, unless it is "in accordance with the law", pursues one of
the legitimate aims enumerated in para. 2 of that provision and is
"necessary in a democratic society" for the protection of the
aforementioned aim.
The Commission notes that the legal basis for the expulsion was
S. 3 subpara. 2 (5) of the Aliens Act. Thus, the measure complained
of was "in accordance with the law".
The Commission further considers that the measure complained of
had a legitimate aim under Article 8 para. 2 (Art. 8-2) of the
Convention, namely the prevention of disorder and crime.
As regards the question whether the interference 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
(see, Eur. Court H.R., Beldjoudi judgment, loc. cit., p. 27, para. 74).
The Commission notes that the applicant has been found guilty of
abetting and organising, in a professional manner, the illegal entry
of aliens. When issuing the residence prohibition, the Austrian
authorities duly took into account the applicant's family links in
Austria, and the lack of his links with China. However, they found
that the applicant's private interest in staying was clearly outweighed
by the gravity of the offence at stake, committed on a professional
basis.
Thus, the Commission, taking into account the margin of
appreciation left to the Contracting States, is satisfied that the
residence prohibition complained of did not go beyond what could be
regarded as necessary in democratic society for the prevention of
disorder and crime. Thus, the interference with the applicant's family
life complained of was justified under Article 8 para. 2
(Art. 8-2) of the Convention.
Consequently, there is no appearance of a violation of the
applicant's rights to respect for his private and family life as
guaranteed by Article 8 (Art. 8) 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) (A. WEITZEL)
Full & Egal Universal Law Academy