Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 20807/92

Mikdat Bulut

against

Austria

REPORT OF THE COMMISSION

(adopted on 5 March 1996)

TABLE OF CONTENTS

Page

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

(paras. 1-3)

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

(paras. 4-8)

III. THE PROCEEDINGS BEFORE THE COMMISSION . . . . . . . . . . . . 2

(paras. 9-20)

IV. THE DECISION OF THE COMMISSION. . . . . . . . . . . . . . . . 4

(paras. 21-23)

ANNEX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . .5I.THE PARTIES

1. This Report, which is drawn up by the European Commission of

Human Rights (First Chamber) in accordance with Article 30 para. 1 of

the Convention, concerns the application brought by Mikdat Bulut

against Austria.

2. In the proceedings before the Commission the applicant was

represented by Mr. Wilfried Ludwig Weh, a lawyer practising in Bregenz,

Austria.

3. The respondent Government were represented by their Agent,

Mr. Franz 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 29 November 1995, attached hereto as an appendix

and can be summarised as follows:

5. On 21 December 1990 the Innsbruck Federal Police Department

(Bundespolizeidirektion) issued a residence prohibition against the

applicant, referring to a conviction of 23 March 1990 and to

administrative offences for which the applicant had been fined.

6. The Tyrol Security Directorate (Sicherheitsdirektion) rejected the

applicant's appeal on 14 June 1991, and on 30 September 1991 the

Constitutional Court (Verfassungsgerichtshof) declined to deal with the

applicant's constitutional complaint.

7. On 12 June 1992 the Administrative Court (Verwaltungsgerichtshof)

rejected the applicant's administrative complaint.

8. Before the Commission the applicant complains that the residence

prohibition which was issued on 21 December 1990 constituted an

unjustified interference with his rights under Article 8 of the

Convention.

III. THE PROCEEDINGS BEFORE THE COMMISSION

9. The application was introduced on 29 September 1992 and

registered on 13 October 1992. The applicant's first application

(No. 17358/90) terminated in a judgment of the European Court of Human

Rights on 22 February 1996. A third application (No. 25191/94)

concerned the applicant's detention pending removal (Schubhaft) which

was not finally carried out. It was declared inadmissible on

12 January 1995.

10. On 2 March 1994 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.

11. The Government's observations were submitted on 27 May 1994 and

the observations in reply by the applicant were submitted on

4 August 1994.

12. On 29 November 1995 the Commission declared the application

admissible.

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

to the parties on 8 December 1995 and they were invited to submit any

further evidence or additional observations which they wished to put

before the Commission.

14. By letter of 26 January 1996 the Government informed the

Commission that the applicant had been issued a re-entry permit by the

Austrian Embassy in Ljubljana and that the residence prohibition

against him had been lifted ex officio on 4 December 1995. With regard

to the fact that the applicant was again entitled to legally reside in

Austria and that he was thus given satisfaction, the Government

expressed their wish that the application be struck out of the list of

the Commission's cases, pursuant to Article 30 para. 1 (b) of the

Convention.

15. By letter of 31 January 1996 the Commission requested the

applicant to comment on the Government's proposal by 16 February 1996.

16. On 9 February 1996 the applicant asked for an extension until

26 February 1996 as a judgment in his first case before the Convention

organs (Application No. 17358/90) was to be given by the European Court

of Human Rights on 22 February 1996. By letter of 26 February 1996 he

asked for a further extension until 28 February 1996.

17. On 29 February 1996 the applicant submitted that the case should

not be struck off the list as he had suffered considerably as a result

of the residence prohibition. He pointed to the uncertainty hovering

over him and his family since 1990 and to the costs incurred in his

representation. He also submitted that Governments should not be

permitted to play "cat and mouse" with an applicant - the applicant was

twice taken into detention pending removal - until an application is

declared admissible, and then be able to avoid responsibility by

withdrawing a residence prohibition. He considered that he should be

granted a permanent residence permit. By the same letter the applicant

also made settlement proposals.

18. On 29 February 1996 the Government declined to comment on the

settlement proposals.

19. On 5 March 1996 the Commission (First Chamber) adopted the

present Report.

20. The following members were present when the Report was adopted:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

IV. THE DECISION OF THE COMMISSION

21. The Commission notes that residence prohibition which was made

against the applicant in 1990 and which formed the basis of the present

application has been lifted.

22. The Commission notes that the question of one period of detention

pending removal was considered in Application No. 25191/94, which was

declared inadmissible on 12 January 1995, and that throughout the

period from 1990 until the lifting of the prohibition in 1995, the

applicant remained in Austria and was able to pursue his occupation as

a waiter. The application does not concern a refusal to grant a

residence permit, and so the applicant's submission that he should now

be given such a permit is not pertinent. The Commission concludes

therefore that the matter has been resolved, within the meaning of

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

23. The Commission further concludes that respect for human rights

as defined in the Convention does not require the continuation of the

examination. In particular, it considers that the question of the

applicant's costs is not a matter which would require continuation of

the examination.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE APPLICATION No. 20807/92 OFF ITS LIST OF CASES;

ADOPTS THE PRESENT REPORT;

DECIDES TO SEND THE PRESENT REPORT to the Committee of Ministers

for information, to send it also to the parties' representatives,

and to publish it.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

Menu

BULUT v. AUSTRIA

BULUT v. AUSTRIA

LEXI