Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22782/93

by Mesut and Göker GÜMÜSKAYA

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs J. LIDDY, President

MM M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 28 September 1993

by Mesut and Göker GÜMÜSKAYA against Austria and registered on

18 October 1993 under file No. 22782/93;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

27 October 1995 and the observations in reply submitted by the

applicants on 19 December 1995;

Having deliberated;

Decides as follows:

THE FACTS

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. Before the

Commission the applicants are represented by Mr. T. Prader, a lawyer

practising in Vienna.

The facts of the case, as submitted by the parties, may be

summarised as follows.

Both applicants were brought up by their parents in Vienna. In

1979 the first applicant left his parents and lived with his

grandparents in Turkey. He came back in 1984 and terminated his school

in Vienna. Subsequently he worked as a manual worker for various

Austrian firms. The second applicant lived exclusively with his

parents and sister in Vienna and visited Turkey only for short holiday

visits. He attended school in Vienna and subsequently went on to a

commercial school. He worked as a manual worker, too.

On 4 October 1990 the Vienna Juvenile Court (Jugendgerichtshof)

convicted the second applicant of aggravated robbery (schwerer Raub),

serious bodily harm (schwere Körperverletzung) and burglary

(Einbruchsdiebstahl) and the first applicant of aggravated robbery and

attempted burglary. The court sentenced the second applicant to

twenty-one months' imprisonment, fourteen months of which were

suspended on probation, and the first applicant to eighteen months'

imprisonment, twelve months of which were suspended on probation.

The Juvenile Court established that in the course of the night

from 5 to 6 May 1990 the applicants, together with six other young

persons most of whom belonged to a gang, had forcibly taken away sums

of money between twenty and fifty schillings respectively from some

sixteen persons, a pair of sports shoes from another person and had

attempted to rob money and cigarettes from another three persons.

The court noted that the perpetrators had surrounded their

victims in a threatening manner and punched and kicked them when they

refused to hand over cash and other objects. One of the perpetrators

threatened the victims also with a knife. The court held further that

the applicants and five other accused had acted as look-outs while

another member of the group had been trying to force a cigarettes

vending machine.

In addition, the court found that, in the same night, the second

applicant and another accused had stolen a tennis racket from a

cabriolet and that later the second applicant had hit the head of two

persons with that racket.

When imposing the sentences the Juvenile Court noted that the

offences in question had been committed by an organised gang. As

regards the applicants, the court took into consideration, inter alia,

that they had so far no criminal record, had admitted the offences, had

not benefitted from the robbed objects, that there was nothing to show

that they had a tendency to committing criminal offences and that they

had a regular job. The court also noted that the applicants had not

belonged to the most aggressive perpetrators of the offences in

question and that, unlike four other accused, they had committed no

further offences after 6 May 1990.

On 23 April 1992 the Vienna Federal Police Authority (Bundes-

polizeidirektion) imposed, pursuant to Section 3 paras. 1 and 2 (1) of

the Aliens Act (Fremdenpolizeigesetz), a residence prohibition expiring

on 30 June 2002 on the applicants.

The Police Authority held, with reference to the applicants'

conviction of 4 October 1990, that their further stay in Austria

constituted a danger to public order and security and that the public

interest in imposing the residence prohibition was not outweighed by

the applicants' personal links to Austria.

The Police Authority also noted that on 18 July 1991 the first

applicant had been accused of being in the possession of drugs and on

18 October 1991 proceedings had been instituted on suspicion of his

having committed a theft. In the case of the second applicant the

Police Authority noted that on 18 November 1991 charges had been laid

against him for having caused bodily harm.

On 1 September 1992 the Vienna Security Authority (Sicher-

heitsdirektion) dismissed the applicants' appeals. It held that,

contrary to the applicants' allegations, the conviction of 4 October

1990 related to serious offences that could not be minimised.

The decisions further stated that the situation of the applicants

had been duly taken into account in that the residence prohibition had

been imposed on them for a limited period expiring in 2002. The

Security Authority also noted that the applicants' grandparents lived

in Turkey and that consequently they had family ties also in that

country.

As regards the case of the first applicant, the Security

Authority noted, in addition, that he had lived with his grandparents

and had attended school in Turkey from 1979 to 1984. The Security

Authority considered it irrelevant that the proceedings instituted on

18 October 1991 had been discontinued and recalled that the decision

to impose a residence prohibition on the first applicant had been based

on his conviction of 4 October 1990.

As to the case of the second applicant, the Security Authority

refused to wait for the outcome of the criminal proceedings that were

then pending against him and noted that he did not contest the facts

imputed to him in the context of those proceedings.

On 23 November 1992 the Vienna Juvenile Court convicted the

second applicant of having organised a gang, of serious bodily harm and

assault (gefährliche Drohung) and imposed a conditional five months'

prison sentence on him. At the same time the Juvenile Court extended

his period of probation relating to his conviction of 4 October 1990

to five years.

On 9 December 1992 the Constitutional Court (Verfassungs-

gerichtshof) decided not to deal with the applicants' complaints.

On 14 April 1993 the Administrative Court (Verwaltungs-

gerichtshof) dismissed the applicants' complaints. It noted that the

applicants did not contest that the measure complained of had been

taken in accordance with the relevant provisions of the Aliens Act and

held that the authorities had struck a correct balance between the

interests of public safety and maintaining order and peace as compared

to the private interests of the applicants in staying in Austria.

In the Administrative Court's view, the offences of which the

applicants had been convicted showed that they had little respect for

the physical integrity of other persons and therefore the public

interest had to prevail. The Administrative Court considered it

irrelevant that the applicants had an employment in Austria and that

their only family tie in Turkey was their grandfather.

On 3 February 1995 the Vienna Juvenile Court irrevocably remitted

a part of the sentence which it had imposed on the first applicant on

4 October 1990.

On 28 November 1995 the Federal Ministry of Interior instructed

the Austrian diplomatic missions to Turkey to issue tourist visa with

a year's validity to the applicants.

On 7 April and on 20 August 1997 the applicants' lawyer informed

the Commission that the aforesaid tourist visa had expired on

17 December 1996. The first applicant had unsuccessfully tried to

obtain a new permission to enter Austria and continued to live there

without any legal basis. As a result, he had no right to work in

Austria and was under the constant threat of being expelled. The

applicants' lawyer further informed the Commission that the second

applicant lived in Turkey and tried, with the assistance of another

lawyer, to have the residence prohibition in Austria lifted.

COMPLAINT

The applicants invoke Article 8 of the Convention considering

that in their cases the residence prohibition amounts to a

disproportionate and unjustified interference with their right to

respect for their private and family life.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 28 September 1993 and

registered on 18 October 1993.

On 27 June 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written 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.

THE LAW

The applicants complain that the residence prohibition which was

imposed on them amounts to a disproportionate and unjustified

interference with their right to respect for their private and family

life. They allege a violation of Article 8 (Art. 8) of the Convention

which provides 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 freedoms of others."

The Government contend that the interference complained of had

a legal basis, namely Section 3 paras. 1 and 2 (1) of the Aliens Act,

and that it pursued the legitimate aim of maintaining public safety and

order.

The Government further submit that the applicants were convicted

of unusually serious offences which they had committed as members of

a gang and that subsequently the second applicant was again convicted

of other serious offences. The Government therefore consider that the

applicants' further stay in Austria constituted a serious risk to

public safety and order and that the imposition of a residence

prohibition on them was therefore necessary within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention.

In the Government's view, the interference in question was

proportionate to the legitimate aim pursued as the Austrian authorities

had taken into account the applicants' age and had imposed a residence

prohibition on them only for a limited period. Furthermore, the

respondent Government refer to the fact that the first applicant spent,

while he was a child, five years in Turkey and that the second

applicant did not claim that he did not speak Turkish.

Finally, the Government submit that the applicants are not

married and have no children, and that they can reasonably be expected

to find in their home country a similar job as they had in Austria.

The applicants admit that they violated Austrian law while

belonging to a juvenile gang. They explain that they were members of

the gang, similarly as it is the case of many other young persons both

in the cities and in the countryside, because of the feelings of

resentment towards the recognized values of the society which is a

characteristic feature of transition from puberty to early adulthood.

They contend that their membership in the gang was not of a lasting

character and that they played only a subordinate role in it.

In the applicants' view, their conviction of 4 October 1990,

account being taken of their age and the circumstances under which they

committed the offences, does not justify the conclusion that they

represent a serious and lasting risk to public safety and order in

Austria.

In particular, the applicants contend that their acting as such

was not particularly serious and that it formally constituted an

aggravated robbery under Austrian law because the offences had been

committed by a juvenile gang a member of which had threatened the

victims with a knife.

They further point out that they were convicted of attempted

burglary on the ground that they had acted as look-outs while another

member of the group had tried to force a cigarettes vending machine

with a knife. The second applicant contends that he did not inflict

serious injuries on anybody but that his acting was formally qualified

as causing serious bodily harm because the injuries were inflicted by

three perpetrators acting together.

The applicants therefore consider that their acting in the night

to 6 May 1990 did not constitute, in its very substance, particularly

serious offences.

The applicants consider it irrelevant in the circumstances of

their case whether or not they speak Turkish and whether or not they

are married. They conclude that the decision to impose a residence

prohibition on them was not proportionate to the aim pursued.

In addition, the second applicant objects that the decision to

impose a residence prohibition on him was based exclusively on his

conviction of 4 October 1990. He therefore submits that his subsequent

conviction of 23 November 1992 should not be taken into consideration

when deciding on his application.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and of fact

under the Convention, the determination of which should depend on an

examination of the merits of the application. The Commission concludes

therefore, that the application is not manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No

other grounds for declaring it inadmissible have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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GÜMÜSKAYA v. AUSTRIA

GÜMÜSKAYA v. AUSTRIA

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