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EUROPEAN COMMISSION OF HUMAN RIGHTS

PLENARY

Application No. 26998/95

Adeyemi Adegbie

against

Austria

REPORT OF THE COMMISSION

(adopted on 15 September 1997)

TABLE OF CONTENTS

Page

I. THE PARTIES

(paras. 1-3). . . . . . . . . . . . . . . . . . . . . . . . . 1

II. SUMMARY OF THE FACTS

(para. 4) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. THE PROCEEDINGS BEFORE THE COMMISSION

(paras. 5-13) . . . . . . . . . . . . . . . . . . . . . . . . 1

IV. THE DECISION OF THE COMMISSION

(paras. 14-17). . . . . . . . . . . . . . . . . . . . . . . . 3

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

Adeyemi Adegbie against Austria.

2. The applicant is a Nigerian citizen, born in 1964 and resides in

Vienna. In the proceedings before the Commission the applicant was

represented by Mr. R. Kohlhofer, 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 9 April 1996, annexed hereto, and may be summarised

as follows:

In September 1986 the applicant went to Austria. In 1990 he

married an Austrian national. On 25 November 1993 the Vienna Federal

Police Authority (Bundespolizeidirektion) issued a residence

prohibition against the applicant. On 10 February 1994 the Vienna

Public Security Authority (Sicherheitsdirektion) dismissed the

applicant's appeal. It found that the residence prohibition constituted

an interference with his right to respect for his private and family

life. Since the applicant had, however, been convicted twice under the

Drug Offences Act and had, moreover, been fined twice for illegal

residence, the public interest in issuing the residence prohibition

outweighed his interest in staying in Austria. The applicant filed

complaints with the Constitutional Court (Verfassungsgerichtshof) and

the Administrative Court which, however, remained unsuccessful. On

13 June 1994 the Constitutional Court (Verfassungsgerichtshof) declined

to deal with the complaint for lack of prospects of success. On

3 November 1994 the Administrative Court dismissed the applicant's

complaint. The residence prohibition against the applicant was not

enforced. On 15 July 1997 it was revoked. The Government submit that

in view of this decision the applicant can no longer claim to be a

victim of a violation of the Convention.

III. THE PROCEEDINGS BEFORE THE COMMISSION

5. The application was introduced on 27 December 1994 and registered

on 7 April 1994.

6. On 13 April 1995 the Commission 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.

7. The Government's observations were submitted on 23 June 1995.

The applicant replied on 23 August 1995.

8. On 9 April 1996 the Commission declared admissible the

applicant's complaint under Article 8 of the Convention. It declared

inadmissible the remainder of the application.

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

to the parties on 24 April 1996 and they were invited to submit such

further information or observations on the merits as they wished.

Neither the Government nor the applicant made any further observations.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.

11. On 18 January 1997 the Commission made a proposal for a friendly

settlement of the case. On 26 February 1997 the Government agreed to

the terms for the friendly settlement as proposed by the Commission.

On 7 April 1997 the applicant's lawyer stated that he preferred a

"decision" by the Commission. On 24 June 1997 the applicant was

requested to inform the Commission at latest on 4 July 1997 whether he

would agree to the terms for the friendly settlement as proposed by the

Commission. The applicant did not react within the time limit.

12. On 15 July 1997 the Vienna Federal Police Authority revoked the

residence prohibition against the applicant. On 16 July 1997 the

Government informed the Commission accordingly. Meanwhile, on

14 July 1997 the applicant's lawyer submitted a signed declaration

agreeing to the terms for the friendly settlement as proposed by the

Commission.

13. On 15 September 1997 the Commission 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:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

IV. THE DECISION OF THE COMMISSION

14. The Commission notes that on 15 July 1997 the Vienna Federal

Police Authority revoked the residence prohibition against the

applicant which was the object of the present application.

15. The Commission observes that on 14 July 1997 the applicant

submitted a signed declaration agreeing to the terms for the friendly

settlement as proposed by the Commission. The Commission finds,

however, that no friendly settlement has been reached in the present

case. The Government agreed to the terms proposed by the Commission

in February 1997 while the applicant did not agree to the terms of the

friendly settlement within the time-limit set for this purpose. At the

time the Government unilaterally revoked the residence prohibition it

could therefore no longer be considered bound by its agreement given

in February.

16. In the light of the above considerations, 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.

17. 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. 26998/95 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.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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ADEGBIE v. AUSTRIA

ADEGBIE v. AUSTRIA

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