EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 26495/95

Shahin Mustafai-Nejad

against

Austria

REPORT OF THE COMMISSION

(adopted on 8 July 1998)

TABLE OF CONTENTS

Page

I. THE PARTIES 1

(paras. 1-3)

II. SUMMARY OF THE FACTS 1

(paras. 4-5)

III. THE PROCEEDINGS BEFORE THE COMMISSION 1

(paras. 6-17)

IV. THE DECISION OF THE COMMISSION 3

(paras. 18-20)

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 4

I. THE PARTIES

1. This Report, which is drawn up in accordance with Article 30 para. 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, concerns the application brought by Shahin Mustafai-Nejad against Austria.

2. The applicant, an Iranian national, was born in 1970 and resided, at the time of the events, in Austria.  In the proceedings before the Commission the applicant was represented by Mr. G. Lansky , a lawyer practising in Vienna.

3. The Government of Austria were represented by their Agent, Mr F. Cede, Ambassador, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

II. SUMMARY OF THE FACTS

4. The facts of the case are set out in the Commission's decision on admissibility of 17 January 1997, annexed hereto, and may be summarised as follows:

5. On 23 August 1993 the Vienna Federal Police Authority ( Bundespolizeidirektion ) imposed a ten years' residence prohibition on the applicant, who had been living in Austria since 1975.  The Authority found that in view of the applicant's criminal record the imposition of a residence prohibition was necessary in the public interest and that the applicant's private interests in staying in Austria did not outweigh the public interest.  Appeal proceedings remained unsuccessful.  Thereupon the applicant filed a complaint with the Constitutional Court ( Verfassungsgerichtshof ).  On 12 March 1994 the Constitutional Court refused to entertain the applicant's complaint and referred the case to the Administrative Court ( Verwaltungsgerichtshof ).  On 1 June 1994 the Administrative Court dismissed the applicant's complaint.  At an unspecified date the applicant complied with the residence prohibition and went to Iran.  The applicant complained to the Commission that his expulsion to Iran would violate his right to respect for his private and family life as guaranteed by Article 8 of the Convention.  He further relied on Article 3 of the Convention and Article 1 of Protocol No. 7.

III. THE PROCEEDINGS BEFORE THE COMMISSION

6. The application was introduced on 11 January 1995 and registered on 13 February 1995.

7. On 6 September 1995 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

8. The Government's observations were submitted on 5 December 1995.  The applicant replied on 10 May 1996.

9. On 17 January 1997 the Commission declared admissible the applicant's complaint under Article 8 of the Convention.  It declared inadmissible the remainder of the application.

10. The text of the Commission's decision on admissibility was sent to the parties on 28 January 1997 and they were invited to submit such further information or observations on the merits as they wished.

11. On 13 March 1997 and 1 July 1997 respectively the parties informed the Commission that they were interested in a friendly settlement of the application and asked the Commission to make appropriate proposals.

12. By letters of 25 September 1997 the Commission submitted to the parties a proposal for a friendly settlement of the application.

13. On 23 October 1997 the respondent Government informed the Commission that the applicant had left Austria.

14. On 5 January 1998 the applicant's lawyer submitted a statement by the applicant according to which he maintained his application.

15. On 13 February 1998 the respondent Government informed the Commission that on 10 February 1998 the residence prohibition imposed on the applicant had been lifted by the competent authority.  On 27 May 1998 the respondent Government informed the Commission that the Minister for the Interior had given his assurance that the applicant will be granted a residence permit once he would file such a request.

16. On 8 July 1998 the Commission decided to strike the present application out of its list of cases, pursuant to Article 30 para. 1(b) of the Convention.

17. It adopted the present Report and decided to transmit it to the Committee of Ministers and the Parties for information and to publish it.  The following members of the Commission were present when the Report was adopted:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

A. ARABADJIEV

IV. THE DECISION OF THE COMMISSION

18. The Commission notes that on 10 February 1998 the Vienna Federal Police Authority lifted the residence prohibition on the applicant and that by letter of 27 May 1998 the respondent Government had given its assurance that the applicant will be granted a residence permit once he would file such a request.

19. In these circumstances the Commission considers that the matter giving rise to the application has been resolved, within the meaning of Article 30 para. 1 (b) of the Convention.

20. Moreover, as regards the issues raised in the present case, 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 APPLICATION No. 26495/95 OUT OF ITS LIST OF              CASES;

ADOPTS THE PRESENT REPORT;

DECIDES TO SEND THE PRESENT REPORT to the Committee of Ministers              and the Parties for information, and to publish it.

      M.-T. SCHOEPFER                                                        J.-C. GEUS

          Secretary                                                                          President

    to the Second Chamber                                              of the Second Chamber