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GÜMÜSKAYA v. AUSTRIA

Doc ref: 22782/93 • ECHR ID: 001-45966

Document date: March 10, 1998

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GÜMÜSKAYA v. AUSTRIA

Doc ref: 22782/93 • ECHR ID: 001-45966

Document date: March 10, 1998

Cited paragraphs only

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 22782/93

Mesut and Göker Gümüskaya

against

Austria

REPORT OF THE COMMISSION

(adopted on 10 March 1998)

TABLE OF CONTENTS

Page

I. THE PARTIES. . . . . . . . . . . . . . . . . . . . . . 1

(paras. 1-3)

II. SUMMARY OF THE FACTS . . . . . . . . . . . . . . . . . 1

(paras. 4-7)

III. THE PROCEEDINGS BEFORE THE COMMISSION. . . . . . . . . 1

(paras. 8-16)

IV. THE DECISION OF THE COMMISSION . . . . . . . . . . . . 3

(paras. 17-19)

APPENDIX: DECISION ON ADMISSIBILITY . . . . . . . . . . . . 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 Mesut and

Göker Gümüskaya against Austria.

2. The applicants are brothers and Turkish citizens. They were both

born in Vienna, Mesut Gümüskaya ("the first applicant") in 1972 and

Göker Gümüskaya ("the second applicant") in 1974. In the proceedings

before the Commission the applicants were represented by Mr T. Prader,

a lawyer practising in Vienna.

3. The Government of Austria were represented by their Agent,

Mr F. Cede, Ambassador.

II. SUMMARY OF THE FACTS

4. The facts of the case are set out in the Commission's decision

on admissibility of 3 December 1997, annexed hereto, and may be

summarised as follows:

5. On 4 October 1990 the Vienna Juvenile Court (Jugendgerichtshof)

convicted the first applicant of aggravated robbery and attempted

burglary and the second applicant of aggravated robbery, serious bodily

harm and burglary. On 23 April 1992 the Vienna Federal Police

Authority (Bundespolizeidirektion) imposed, with reference to their

aforesaid conviction, a residence prohibition expiring on 30 June 2002

on the applicants. Their appeals were of no avail and they were

expelled from Austria.

6. On 28 November 1995 the Federal Ministry of the Interior

(Bundesministerium für Inneres) instructed the Austrian diplomatic

missions to Turkey to issue tourist visa with a year's validity to the

applicants. On the expiry of the visa the first applicant

unsuccessfully tried to obtain a new permission to enter Austria and

continued to live there without any legal basis. The second applicant

lived in Turkey and tried to have the residence prohibition in Austria

lifted.

7. Before the Commission the applicants complain that the imposition

of a residence prohibition on them amounted to a breach of their right

to respect for their private and family life as guaranteed by Article 8

of the Convention.

III. THE PROCEEDINGS BEFORE THE COMMISSION

8. The application was introduced on 28 September 1993 and

registered on 18 October 1993.

9. On 27 June 1995 the Commission (First 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.

10. The Government's observations were submitted on 27 October 1995,

after an extension of the time-limit fixed for that purpose. The

applicants replied on 19 December 1995.

11. On 3 December 1997 the Commission declared the application

admissible.

12. The text of the Commission's decision on admissibility was sent

to the parties on 18 December 1997 and they were invited to submit such

further information or observations on the merits as they wished.

13. On 27 January 1998, in the context of the friendly settlement

negotiations, the applicants expressed their concern that a mere

lifting of the residence prohibition would not remedy their situation

in full. They claimed, in particular, a residence permit and

reimbursement of their expenses incurred in the proceedings before both

the Austrian authorities and the Commission.

14. By letters of 30 January and 13 February 1998 the Government

informed the Commission that the residence prohibition imposed on the

applicants had been lifted by decisions of the Vienna Federal Police

Authority of 13 January 1998, and that on 26 January 1998 the aforesaid

authority had quashed its earlier decisions by which it had declared

void the applicants' re-entry visa with unlimited validity. The

Government further stated that it was their understanding that the

application could be terminated for lack of grievance.

15. On 10 March 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.

16. 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 M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

IV. THE DECISION OF THE COMMISSION

17. The Commission notes that the residence prohibition which was

issued against the applicants in 1992 and which formed the basis of the

present application has been lifted and that the validity of the visa

permitting the applicants to re-enter Austria for an unlimited period

has been renewed.

18. In these circumstances, the Commission concludes that the matter

giving rise to the application has been resolved within the meaning of

Article 30 para. 1 (b) of the Convention.

19. 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. In particular, it considers that the

question of the applicants' costs is not a matter which would require

continuation of the examination.

For these reasons, the Commission, unanimously

DECIDES TO STRIKE APPLICATION No. 22782/93 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.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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