AS TO THE ADMISSIBILITY OF
Application No. 14620/89
by Caslav, Slobodanka, Zaklina and
Zarko ZIKIC
against Austria
The European Commission of Human Rights sitting in private on
3 May 1993, the following members being present:
Present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 29 September 1988
by Caslav, Slobodanka, Zaklina and Zarko ZIKIC against Austria and
registered on 6 February 1989 under file No. 14620/89;
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 parties, may be
summarised as follows.
The applicants, a couple and their two children, are Yugoslav
nationals. The first applicant, the father, was born in 1951 and has
lived in Austria since 1970. The second applicant, his wife, was also
born in 1951. She joined him in Austria shortly after his arrival
there. Their children, the third and fourth applicants, were born in
1973 and 1974, respectively. They were brought up and attended school
in Austria. They are resident in Bürs. The first applicant is a
shift-worker.
Before the Commission the applicants are represented by
Mr. W.L. Weh, a lawyer practising in Bregenz.
A. Particular circumstances of the case
On 4 March 1987 the Bludenz District Administrative Authority
(Bezirkshauptmannschaft) imposed a residence prohibition for a period
of five years, until 4 March 1992, on the first applicant. The
District Authority found in particular that, in the years 1976 - 1985
he had been punished five times for drunken driving of a motor vehicle,
and had thus endangered public peace, order and security.
On 20 October 1987 the Vorarlberg Security Directorate
(Sicherheitsdirektion) dismissed the first applicant's appeal. It
considered in particular that over the past years he had been
repeatedly fined for drunken driving, and had also committed other
traffic offences. In 1976 the Bludenz District Administrative
Authority had imposed on the first applicant a fine of AS 7.000, in
1981 a fine of AS 8.000, in 1985 a fine of AS 10.000 and in 1986 a fine
of AS 14.000, all for drunken driving. On 14 November 1985 the Bludenz
District Authority had warned the first applicant that if he committed
further serious offences, in particular driving a motor vehicle under
the influence of alcohol, a residence prohibition would have to be
imposed. On 24 November 1986 he had nevertheless driven a motor
vehicle under the influence of alcohol and had therefore been fined on
5 December 1986. After a residence prohibition had been imposed on 4
March 1987, he drove again a motor vehicle under the influence of
alcohol on 2 June 1987, a blood test showing blood alcohol of 2 per
mille. The Security Directorate concluded that repeated fines, a
suspension of his driving licence and even the warning about a
residence prohibition could not induce the first applicant to observe
the traffic regulations. His residence in Austria, therefore,
presented a danger to public peace, order and security. Personal
circumstances, especially the length of his residence as well as his
and his family's integration in Austria could not outweigh the public
interest in the residence prohibition.
On 29 September 1987 the Constitutional Court
(Verfassungsgerichtshof) annulled Section 3 of the Aliens Act
(Fremdenpolizeigesetz) as amended by Federal Law No. 555/1986 - the
legal basis for residence prohibitions - with effect from
31 December 1987.
On 18 November 1987 the first applicant lodged a complaint with
the Constitutional Court which on 7 December 1987 refused to entertain
his complaint. The Court found in particular that the first applicant
could not challenge Section 3 of the Aliens Act, which had been
annulled by its judgment of 29 September 1987. The Constitutional
Court referred the complaint to the Administrative Court
(Verwaltungsgerichtshof) on 20 January 1988.
On 2 March 1988 the Administrative Court dismissed the complaint.
It found that neither the Aliens Act nor Article 8 of the Convention
required the authority to balance the residence prohibition against
less restrictive administrative measures in the present case, as the
first applicant had been punished for repeated and serious offences and
the prohibition of his further residence in the country was necessary
for the maintenance of public peace and order, for the prevention of
further offences and for the protection of the health of others
(Section 3 para. 3 lit. b, d and e of the Aliens Act). The
Administrative Court further noted that the first applicant had not
been deterred from committing further serious offences either by the
warning about or by the imposition of the residence prohibition.
By letter of 5 June 1990 the first applicant was informed by the
Bludenz District Administrative Authority that he had to leave the
country within a period of two weeks after receipt of the letter,
otherwise punitive and coercive measures (detention pending
deportation) would be taken. On 3 December 1990 the first applicant
was granted a visa by the Bludenz District Administrative Authority and
on 20 November 1991 the same authority granted him a visa valid until
31 January 1993. On 10 January 1992 the Vorarlberg Security
Directorate, which had received instructions from the Federal Ministry
of the Interior, instructed the Bludenz Administrative Authority, with
an express reference to the application pending before the European
Commission of Human Rights, to refrain from deporting the first
applicant until further notice.
B. Relevant domestic law
Section 3 of the Austrian Aliens Act (Fremdenpolizeigesetz) in
the former version in force until 31 December 1987, insofar as relevant
to the case, reads as follows:
[Translation]
"(1) A residence prohibition may be imposed on aliens whose
residence in the Federal territory endangers public peace,
order or security, or contravenes other public interests.
(2) In particular, a residence prohibition may be imposed on
aliens,
a) on whom a sanction has been imposed by a final decision of
a domestic administrative authority for serious or repeated
offences;
b) ....
(3) The authority, when imposing a residence prohibition, shall
balance the personal situation of the alien, especially the
right to respect for his private and family life, against
the public interests supporting the residence prohibition.
An interference with this right is only lawful if it is
necessary
a) for the protection of the internal and external security of
the Republic of Austria,
b) for the maintenance of public peace and order,
c) for the protection of the economic well-being of the
Republic of Austria,
d) for the prevention of crime,
e) for the protection of the health and morals of
others, or
f) for the protection of the rights and freedoms of
others."
[German]
"(1) Gegen Fremde, deren Aufenthalt im Bundesgebiet die
öffentliche Ruhe, Ordnung oder Sicherheit gefährdet oder
anderen öffentlichen Interessen zuwiderläuft, kann ein
Aufenthaltsverbot erlassen werden.
(2) Insbesondere kann ein Aufenthaltsverbot gegen Fremde
erlassen werden,
a) die von einer inländischen Verwaltungsbehörde wegen
schwerwiegender oder wiederholter Übertretungen
rechtskräftig bestraft worden sind;
b) ....
(3) Die Behörde hat bei Erlassung eines Aufenthaltsverbotes die
persönlichen Verhältnisse des Fremden, insbesondere das
Recht auf Achtung seines Privat- und Familienlebens, gegen
die für die Erlassung eines Aufenthaltsverbotes sprechenden
öffentlichen Interessen abzuwägen. Ein Eingriff in dieses
Recht ist nur zulässig, wenn dieser
a) zum Schutz der inneren oder äusseren Sicherheit der Republik
Österreich,
b) zur Aufrechterhaltung der öffentlichen Ruhe und Ordnung,
c) zum Schutz des wirtschaftlichen Wohles der Republik
Österreich,
d) zur Verhinderung von strafbaren Handlungen,
e) zum Schutz der Gesundheit und der Moral anderer,
oder
f) zum Schutz der Rechte und Freiheiten anderer
notwendig ist."
Section 6 para. 1 of the Aliens Act reads as follows:
[Translation]
"(1) An alien on whom a residence prohibition has been imposed
has to leave the territory where residence has been
prohibited within a week after the decision becomes
enforceable. During the period of validity of the residence
prohibition he must not re-enter this territory without
permission."
[German]
"(1) Der Fremde, gegen den ein Aufenthaltsverbot erlassen worden
ist, hat das Gebiet in dem ihm der Aufenthalt verboten ist,
innerhalb einer Woche nach Rechtskraft des Bescheides zu
verlassen. Er darf dieses Gebiet während der Geltungsdauer
des Aufenthaltsverbotes ohne Bewilligung nicht wieder
betreten."
Section 25 of the Passport Act (Paßgesetz) reads, in its passages
relevant to the case, as follows:
[Translation]
"(1) A visa may be issued to an alien upon his request, if no
reasons for a refusal as mentioned in para. 3 exist.
(3) The issuing of a visa shall be refused if
...
c) an enforceable residence prohibition had been imposed on the
applicant, unless he had been issued a permission according
to Section 6 para. 1 of the Aliens Act, Federal Law Gazette
No. 75/1954 ..."
...
[German]
"(1) Ein Sichtvermerk kann einem Fremden auf Antrag erteilt
werden, sofern kein Versagungsgrund gemäß Abs. 3 vorliegt.
(3) Die Erteilung eines Sichtvermerks ist zu versagen, wenn
...
(c) gegen den Sichtvermerkswerber ein rechtskräftiges
Aufenthaltsverbot besteht, es sei denn, daß ihm eine
Bewilligung gemäß Paragraph 6 Abs. 1 des
Fremdenpolizeigesetzes, BGBl. Nr. 75/1954, erteilt worden
ist ..."
Section 27 of the Passport Act (Paßgesetz) provides:
[Translation]
"(1) A visa shall be declared invalid by the authority if
subsequently facts become known or occur, which would have
justified the refusal of a visa or would justify it.
(2) If a residence prohibition imposed on an alien becomes
enforceable, the visa issued to him becomes invalid."
[German]
"(1) Ein Sichtvermerk ist von der Behörde für ungültig zu
erklären, wenn nachträglich Tatsachen bekannt werden oder
eintreten, die die Versagung des Sichtvermerks
gerechtfertigt hätten oder rechtfertigen würden."
(2) Erwächst ein gegen einen Fremden verhängtes
Aufenthaltsverbot in Rechtskraft, wird der ihm erteilte
Sichtvermerk ungültig."
COMPLAINTS
1. The applicants complain under Article 8 of the Convention
that the residence prohibition was not imposed in accordance with law
on the first applicant, as the authority had applied a law which had
already been declared unconstitutional by the Constitutional Court.
Furthermore they consider the residence prohibition imposed on the
first applicant as a disproportionate measure.
2. Under Article 8 of the Convention the applicants also
complain about the delay in the proceedings before the Vorarlberg
Directorate of Security on the first applicant's appeal against the
residence prohibition.
3. Lastly the applicants complain under Article 6 para. 1 of
the Convention of the unfairness of and the unreasonable delay in the
appeal proceedings before the Security Directorate.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 September 1988 and
registered on 6 February 1989.
On 1 July 1991 the Commission decided to communicate the
application to the respondent Government and request them to submit
their written observations on its admissibility and merits. The
Government's observations were submitted on 2 January 1992. On
10 April 1992 the applicants submitted their observations in reply.
THE LAW
1. The applicants complain under Article 8 (Art. 8) of the
Convention that the residence prohibition imposed on the first
applicant constituted an unjustified interference with their right to
respect for private and family life as it was neither in accordance
with Austrian law nor necessary in a democratic society for one of the
aims mentioned in Article 8 para. 2 (Art. 8-2).
Article 8 (Art. 8) of the Convention 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
freedom of others."
The Government submit that the residence prohibition imposed on
the first applicant, which expired on 4 March 1992, had not been
enforced. Moreover, he had been granted a visa on 3 December 1990 and
again on 20 November 1991, the latter valid until 31 January 1993.
These visas had a suspensive effect on the enforcement of the residence
prohibition. Thus, since 3 December 1990 the applicants could no
longer claim to be victims of a violation of the Convention.
The applicants contend that they are still victims within the
meaning of Article 25 (Art. 25) of the Convention. Though the
residence prohibition was never enforced, it continued to be upheld and
the legal position of the first applicant continued to be uncertain.
To the applicants' knowledge the residence prohibition imposed on the
first applicant was still in force and no suspension of its enforcement
or other temporary toleration of the first applicant's stay in Austria
could change the fundamental problem of the residence prohibition. In
the applicants' view the visa issued on 20 November 1991 to the first
applicant was legally invalid under the mandatory provisions of Section
27 para. 2 of the Passport Act, as it was issued in spite of a
residence prohibition imposed on the first applicant. The first
applicant could therefore remain in Austria without a residence permit
only by virtue of the instruction to refrain from deporting him, issued
by the Ministry of the Interior. The applicants submit that also in
the Beldjoudi case, the European Court of Human Rights had found a
violation of Article 8 (Art. 8) of the Convention although the
applicant had not been deported (judgment of 26 March 1992, Series A
no. 234-A). Therefore, already the imposition of a residence
prohibition and not its enforcement constitutes an interference with
Article 8 para. 1 (Art. 8-1) of the Convention.
Under Article 25 para. 1 (Art. 25-1) of the Convention the
Commission may only deal with an application if the applicant can claim
to be a victim of a violation, by one of the High Contracting Parties,
of the rights set forth in the Convention or its Protocols.
On the question whether the applicants may still claim to be
victims under Article 25 para. 1 (Art. 25-1) of an alleged violation
of Article 8 (Art. 8) of the Convention, the Commission observes that
the residence prohibition expired already on 4 March 1992 and can no
longer be enforced. The Commission notes further that even before that
date no steps for its enforcement have been taken and that the
applicants were able to stay together in Austria.
Moreover, on 3 December 1990 and again on 20 November 1991 the
first applicant had been issued a visa, the latter valid until 31
January 1993. It is true that the applicants contest the legal
validity of the visas issued to the first applicant, as they were
issued despite a residence prohibition imposed on the first applicant.
However, the Commission notes that according to Sections 25 para. 3 and
27 para. 1 of the Passport Act a visa issued despite an enforceable
residence prohibition would have to be revoked by the authorities. The
applicants, however, do not submit that the authorities actually did
revoke the first applicant's visa.
Lastly, it transpires from the Government's submissions, not
disputed by the applicants, that the residence prohibition imposed on
the first applicant lasted from 4 March 1987 to 4 March 1992. The
applicants have not argued that after 4 March 1992, the date when the
residence prohibition imposed on the first applicant expired, a new
residence prohibition was imposed on him.
In these circumstances the Commission concludes that the
applicants' complaint under Article 8 (Art. 8) of the Convention is
resolved in such a way that, in the particular circumstances of the
present application, they are no longer able to claim to be victims
within the terms of Article 25 para. 1 (Art. 25-1) of the Convention
(see No. 9856/82, Dec. 14.5.87, D.R. 52 p. 38, at p. 73; No. 18417/91,
Dec. 2.12.92, unpublished; No. 15291/89, Dec. 11.1.93, unpublished).
It follows that this part of the application is inadmissible under
Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicants also complain under Article 6 para. 1
(Art. 6-1) of the Convention of the unfairness of, and the unreasonable
delay in, the proceedings before the Security Directorate. Under
Article 8 (Art. 8) of the Convention the applicants complain that the
Security Directorate had delayed its decision on the appeal of the
first applicant to prevent him from benefiting from the Constitutional
Court's test case ruling on Section 3 of the Aliens Act.
The Commission has examined these complaints under Article 6
(Art. 6) of the Convention.
It recalls however, that a decision as to whether an alien should
be allowed to stay in a country does not involve the determination of
civil rights or of a criminal charge within the meaning of Article 6
(Art. 6) of the Convention (No. 8118/77, Dec. 19.3.1981, D.R. 25 p.
105, at p. 119).
It follows that Article 6 para. 1 (Art. 6-1) of the Convention
is not applicable in the present case. The remainder of the
application is therefore incompatible ratione materiae with the
provisions of the Convention 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 Commission President of the Commission
(H.C. Krüger) (C.A. Nørgaard)
Full & Egal Universal Law Academy