AS TO THE ADMISSIBILITY OF
Application No. 20957/92
by Aynur ÜNLÜ
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 14 September 1992
by Aynur ÜNLÜ against Austria and registered on 17 November 1992 under
file No. 20957/92;
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 1969 and residing in
Hohenems (Austria). Before the Commission she is represented by
Mr. W.L. Weh, a lawyer practising in Bregenz.
A. Particular circumstances of the case
The applicant is the daughter of Turkish parents residing in
Austria. She joined her parents in Austria on 10 August 1990. She
claims that, due to a handicap affecting her hands, she is unable to
work and without prospect of getting married, and, therefore dependent
on her parents.
On 9 October 1990 the applicant, represented by a lawyer, asked
the Dornbirn District Administrative Authority (Bezirkshauptmannschaft)
for a visa (Sichtvermerk). She submitted that her father has been
living and working in Austria for years, that she was healthy, had no
criminal record in Turkey and that the family's accommodation was
sufficient.
On 19 October 1990 the District Administrative Authority informed
the applicant that, at her entry into Austrian territory, she had
probably circumvented the procedures of border control. As she had no
residence permit, which was necessary for Turkish nationals under the
Austrian-Turkish Visa Agreement, her residence in Austria was unlawful
and a deportation order (Ausweisungsbescheid) would be issued. She was
warned that if she did not leave the country immediately after the
deportation order had been issued, her removal (Abschiebung) would be
considered. The applicant was requested to submit her comments within
two weeks.
In her comments of 29 October 1990 the applicant stated that she
had not circumvented the border control, but at the border check point
the border control officials did not check the car.
On 30 October 1990 the District Administrative Authority issued
a deportation order against the applicant. The District Administrative
Authority found that the applicant had entered Austria without a valid
visa and had circumvented the border control, as her passport did not
contain the stamp of a border control office.
On 30 November 1990 the Vorarlberg Public Security Authority
(Sicherheitsdirektion) dismissed the applicant's appeal. The Public
Security Authority held that the applicant's allegation that she had
simply not been checked at the border by the border control officials
was implausible. According to a general instruction (Weisung) issued
by the Federal Ministry for the Interior (Bundesministerum für Inneres)
passports of Turkish nationals had to be stamped at every border
crossing. The Public Security Authority concluded that the applicant
had circumvented the border control when she entered Austria.
On 8 January 1991 the applicant lodged a complaint with the
Constitutional Court (Verfassungsgerichtshof). She submitted that she
was dependent on her parents living in Austria because she was severely
handicapped and therefore unable to work and without prospect of
becoming married. The mere fact that she had entered Austria illegally
could not justify the deportation order. She also invoked Article 8
of the Convention.
On 4 February 1991 the Constitutional Court granted the complaint
suspensive effect.
On 27 November 1991 the Constitutional Court dismissed the
applicant's complaint. The Constitutional Court held that Section 10a
para. 1 of the Aliens Act only concerned a restricted group, namely
aliens who entered Austria by circumventing the border control. Its
purpose was to combat organised illegal entry of aliens
(Schlepperunwesen). Section 10a of the Aliens Act thus served a
legitimate aim within the meaning of paragraph 2 of Article 8 of the
Convention, namely the interest of public safety, and the deportation
order was necessary for this aim. In arriving at this conclusion it
was also important that the deported alien was entitled to institute
proceedings for obtaining a permit to enter Austria by requesting a
visa from abroad. In deciding on a visa request the authorities were
obliged duly to take the person's family interests into account.
On 10 March 1992 the Constitutional Court referred the case to
the Administrative Court (Verwaltungsgerichtshof).
On 9 July 1992 the Administrative Court dismissed the applicant's
complaint. The Administrative Court held that the Public Security
Authority had rejected as implausible the applicant's argument that she
had not circumvented the border control but had simply not been checked
by the border control officials. There were no indications that the
Public Security Authority wrongly assessed the evidence before it,
therefore its decision was in accordance with the law.
Apparently on 28 September 1992 the applicant's request for a
residence permit was dismissed by the Dornbirn District Administrative
Authority.
On 17 March 1993 the Constitutional Court, upon a complaint
lodged by the applicant, quashed this decision. The Constitutional
Court found that when deciding whether a residence permit should be
granted to the applicant, the Administrative Authority failed to take
her private and family situation into account and to balance it against
the public interest in refusing the residence permit. This decision
therefore violated the applicant's rights under Article 8 of the
Convention.
According to the applicant, her request for a residence permit
has not again been decided upon. The deportation order has not yet
been enforced.
B. Relevant domestic law
Section 10a para. 1 of the Aliens Act (Fremdenpolizeigesetz), as
in force at the relevant time, reads as follows:
"Aliens who have entered Austria by circumventing the border control and who cannot be returned, may, upon a written decision, be deported within four months after they have entered Austria." "Fremde, die unter Umgehung der Grenzkontrolle eingereist sind und nicht zurückgeschoben werden dürfen, können innerhalb eines Zeitraumes von vier Monaten nach der Einreise mit Bescheid ausgewiesen werden." COMPLAINTS 1. The applicant complains under Article 8 of the Convention that the deportation order issued against her violated her right to respect for her private and family life, as the authorities had not been obliged to take her family situation into account when issuing the deportation order. She submits that the enforcement of the deportation order would lead to a prolonged period of separation from her parents as she could not manage alone in Turkey with all the administrative formalities necessary for obtaining a residence permit in Austria. 2. The applicant further complains under Article 6 para. 2 of the Convention about a violation of the principle of presumption of innocence. She submits that in the deportation order the Austrian authorities accused her of having circumvented the border control although she had not been convicted of this administrative offence. THE LAW 1. The applicant complains under Article 8 (Art. 8) of the Convention that the deportation order constituted an unjustified interference with her family life, as the Authority had not been obliged to take her family situation into account when issuing the deportation order. Article 8 para. 1 (Art. 8-1) of the Convention reads as follows: "1. Everyone has the right to respect of his private and family life, his home and his correspondence." 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 (cf. No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239). However, in view of the protection of the right to respect for 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 (cf. No. 9478/81, Dec. 8.12.81, D.R. 27 p. 243). 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). The Commission notes that the applicant is the daughter of Turkish parents residing in Austria. She arrived in Austria on 31 August 1990 and, according to the finding of the competent authorities, circumvented the border control. On 30 October 1990 a deportation order was issued against her, which, however, has not yet been enforced. The Commission notes further that at the time the applicant joined her parents in Austria she was 21 years old and, thus, can be considered adult. The applicant submits that she is physically handicapped and therefore dependent on her parents. However, she did not submit any medical evidence or specify her handicap. In the domestic proceedings she relied on this argument only before the Constitutional Court and the Administrative Court. She further did not clarify why she became dependent (again) on her parents in 1990. Having regard to the findings of the Constitutional Court in its decision of 27 November 1991 the Commission observes further that the deportation order issued against the applicant does not imply a residence prohibition and that immediately after having complied with the deportation order she could institute proceedings for obtaining a permit to enter Austria by requesting a visa from abroad. The Commission, therefore, finds that the deportation order imposed on the applicant does not show any lack of respect for her private and family life within the meaning of Article 8 (Art. 8) of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 2. The applicant further complains under Article 6 para. 2 (Art. 6-2) of the Convention about a violation of the principle of presumption of innocence. She submits that in the deportation order the Austrian authorities accused her of having circumvented the border control although she had never been convicted of this administrative offence. The Commission recalls that despite the wording of Article 6 para. 2 (Art. 6-2), which secures the presumption of innocence to "everyone charged with a criminal offence", this provision has been consistently interpreted as also applying to situations where the person concerned is not or no longer formally charged with a criminal offence (cf. Eur. Court H.R., Lutz, Englert and Nölkenbockhoff judgments of 25 August 1987, Series A no. 123, p. 23, para. 56; p. 54, para. 35; p. 79, para. 35). The Commission notes that the District Administrative Authority and the Security Directorate in their respective decisions on the deportation of the applicant considered as a preliminary question whether the applicant had circumvented the border control. The Commission considers that, in deciding this issue, the authorities established the responsibility of the applicant according to administrative law. These findings do not amount to a statement of guilt regarding criminal responsibility in violation of Article 6 para. 2 (Art. 6-2) of the Convention (see No. 9295/81, X. v. Austria, Dec. 6.10.82, D.R. 30 p. 227). It follows that this part of the application 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) (A. WEITZEL)
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