Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24375/94

by Bekir CIFTCI

against Austria

The European Commission of Human Rights sitting in private on

7 April 1997, the following members being present:

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

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 April 1994 by

Bekir CIFTCI against Austria and registered on 10 June 1994 under file

No. 24375/94;

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

23 January 1995 and the observations in reply submitted by the

applicant on 20 March 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen born in 1965. Before the

Commission he is represented by Mr. L. Weh, a lawyer practising in

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

summarised as follows.

The applicant arrived in Austria in 1972 and he lived with his

parents until 1984. In 1990 he married an Austrian citizen with whom

he has three children. They were born in 1985, 1987, and in 1991

respectively and have Austrian citizenship. The applicant used to work

in Austria.

On 14 January 1992 the Feldkirch Regional Court (Landesgericht)

convicted the applicant for offences under the Narcotics Act

(Suchtgiftgesetz) and sentenced him to two years' imprisonment. The

court established that between January and July 1991 the applicant had

sold a total of 700 grams of heroin, and that at different periods

between July 1990 and August 1991 he had consumed cannabis, cocaine and

heroin.

The Feldkirch Regional Court took into account, inter alia, that

the applicant had admitted the acts imputed to him, that he had a clear

criminal record and that he had started undergoing therapy which was

progressing successfully. The execution of the sentence was stayed

until 1 July 1993 and the applicant was ordered to undergo in-patient

disintoxication therapy.

On 6 March 1992 the District Administrative Authority

(Bezirkshauptmannschaft) in Bregenz imposed a residence prohibition on

the applicant. The decision states, inter alia, that in 1989 the

applicant had tried to transport illegally 33 Turkish nationals into

Germany. The applicant admitted before the Austrian authorities that

he had spent five weeks in detention in Kempten (Germany) and had paid

a fine of DM 5,000. The Administrative Authority further established

that in the course of the preceding five years the applicant had

committed 13 administrative offences (Verwaltungsübertretungen) in

Austria.

The District Administrative Authority held that both the

applicant's attempt to smuggle foreigners out of Austria and his

conviction for drug offences represented a relevant reason for imposing

a residence prohibition on him.

The residence prohibition was based on Section 3 (1) of the

Aliens Police Act 1954 (Fremdenpolizeigesetz). The Administrative

Authority considered that in the light of the above findings the

prohibition was necessary for the maintenance of public order and

security. The public interest in preventing the applicant from

committing further offences in Austria prevailed over the applicant's

interest in staying united with his family.

On 20 October 1992 the Vorarlberg Police Headquarters

(Sicherheitsdirektion) upheld the residence prohibition imposed on the

applicant. The applicant then lodged a constitutional complaint. On

11 January 1993 the Constitutional Court (Verfassungsgerichtshof)

granted his complaint suspensive effect, but on 22 March 1993 it

decided not to deal with it. The case was transferred to the

Administrative Court (Verwaltungsgerichtshof).

In his further and better particulars to the Administrative Court

the applicant claimed, inter alia, that the interference with his right

to respect for his private and family life was disproportionate to the

aim pursued. In his view, the administrative authorities should have

taken into account his behaviour and, in particular, his readiness to

undergo a therapy. He further complained that the administrative

authorities had not paid due attention to the progress he had made in

the course of that therapy, and to the decision to stay the execution

of his prison sentence of 14 January 1992.

On 30 September 1993 the Administrative Court dismissed the

applicant's complaint. It pointed out that the applicant had massively

violated public order and security in that he had illegally transported

foreigners out of Austria and had committed drug offences.

The Administrative Court found that, in view of the particularly

dangerous character of drug offences, the public interest prevailed in

such cases over the private interests of the person concerned. The

Administrative Court further held:

[Translation]

"In view of these facts, neither the applicant's readiness to

undergo therapy, nor the stay of execution of the sentence

granted by the court was capable of affecting the balance between

the conflicting interests which was properly struck by the

administrative authority to the disadvantage of the applicant."

[Original]

"Von daher gesehen vermochte weder die Bereitschaft des

Beschwerdeführers, sich einer Therapie zu unterziehen, noch der

vom Gericht gewährte Aufschub des Strafvollzuges die

richtigerweise zuungunsten des Beschwerdeführers ausgegangene

behördliche Interessenabwägung zu beeinflussen."

On 5 October 1993 the Innsbruck Court of Appeal

(Oberlandesgericht) suspended, after having examined the final report

of the hospital in which the applicant had been treated, the

applicant's prison sentence for a three years' probationary period.

According to the medical report, the applicant underwent in-

patient treatment from 7 November 1991 until 23 February 1992. From

the latter date until 24 July 1992 he spent only nights in the hospital

while he worked during the day. Subsequently, the applicant received

out-patient social therapeutic treatment. On 8 September 1993 the

institution "Clean", an advisory body on drug questions, attested his

motivation to abstain from the use of drugs in the future. The Court

of Appeal concluded, therefore, that the applicant's treatment had been

successful and decided to mitigate his sentence.

In view of this decision, the applicant requested that the

residence prohibition imposed on him should be lifted. His request was

dismissed by the Bregenz District Administrative Authority on 12 July

1994. On 3 November 1994 the Vorarlberg Police Headquarters upheld

this decision. The District Administrative Authority noted that under

Section 26 of the Aliens Act a residence prohibition shall be lifted

either on request or ex officio when the grounds on which such a

prohibition was based no longer exist. It considered, however, that

the applicant was likely to re-offend in the future, and that the

decision to mitigate his sentence did not warrant lifting the residence

prohibition which had been imposed on him.

On 3 November 1994 the Constitutional Court refused to deal with

the applicant's complaint about the refusal to lift the residence

prohibition. It held that the complaint only raised issues under

ordinary law, and that the case was not excluded from the jurisdiction

of the Administrative Court.

COMPLAINT

The applicant complains that the residence prohibition imposed

on him interfered with his right to respect for his private and family

life. He alleges a violation of Article 8 of the Convention.

Originally, the applicant also complained that the Austrian

authorities had not taken into account that his prison sentence was

suspended after he had successfully undergone a disintoxication

therapy.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 25 April 1994 and registered

on 10 June 1994.

On 20 October 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 23

January 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 20 March 1995. On 10 September 1996

he submitted supplementary observations and informed the Commission

about further developments in his case.

THE LAW

The applicant complains that the residence prohibition imposed

on him interfered with his right to respect for his private and family

life. He alleges a violation of Article 8 (Art. 8) of the Convention

which reads, so far as relevant, as follows:

"1. Everyone has the right to respect for his private and

family life, ...

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 maintain that the applicant has failed to comply

with the requirement as to the exhaustion of domestic remedies laid

down in Article 26 (Art. 26) of the Convention as he did not seek

redress, after the administrative authorities had refused to lift the

residence prohibition, before the Constitutional Court or the

Administrative Court.

The applicant contends that he unsuccessfully complained about

the refusal to lift the residence prohibition to the Constitutional

Court. He submits that he did not seek redress in this respect also

before the Administrative Court as such an action lacked any prospect

of success. The applicant further maintains that the object of his

application is the decision to impose a residence prohibition on him,

and that he does not complain separately about the subsequent refusal

to lift this prohibition.

The Commission notes that the final decision as regards the

imposition of a residence prohibition upon the applicant was taken by

the Administrative Court on 30 September 1993. The judgment was served

on the applicant on 25 October 1993. Subsequently, the applicant

requested that the residence prohibition should be lifted on the ground

that he had successfully undergone a disintoxication therapy and that

his prison sentence had been, therefore, mitigated. The applicant was

entitled to lodge such a request as under Section 26 of the Aliens Act

a residence prohibition shall be lifted when the grounds on which it

was based no longer exist.

Thus, as a result of further developments in the applicant's case

a new opportunity arose for the respondent Party to redress the alleged

interference with the applicant's rights under the Convention. Since

the basis of the rule of exhaustion of domestic remedies laid down in

Article 26 (Art. 26) of the Convention is that the State made

answerable must have had an opportunity of redressing the alleged

damage by domestic means (cf., mutatis mutandis, No. 12945/87, Dec.

4.4.90, D.R. 65 p. 173), the Commission will take into consideration

also the proceedings concerning this request.

The Commission notes that the applicant unsuccessfully complained

about the refusal to lift the residence prohibition to the

Constitutional Court but failed to seek redress in this respect also

before the Administrative Court. However, on 30 September 1993, when

dealing with the applicant's complaint about the imposition of a

residence prohibition, the Administrative Court had already held that

neither the applicant's readiness to undergo a therapy, nor the stay

of execution of his prison sentence was capable of affecting the

decision challenged by the applicant.

In view of this finding, the Commission considers that a possible

complaint to the Administrative Court about the refusal to lift the

residence prohibition after the applicant's sentence had been mitigated

cannot be regarded as a remedy which the applicant should be required

to try (cf., mutatis mutandis, No. 14838/89, Dec. 5.3.91, D.R. 69

pp. 286, 302). Accordingly, the applicant used the remedies which were

effective and sufficient for the purposes of Article 26 (Art. 26) of

the Convention and the Government's objection in this respect cannot

be upheld.

The Government further point out that the applicant was convicted

of drug offences and that he was involved in illegal transporting of

foreigners from Austria to Germany. They submit that the interference

with the applicant's rights under Article 8 (Art. 8) of the Convention

pursued a legitimate aim, namely the prevention of disorder and the

protection of public safety and health. The Government consider, with

reference to the seriousness of the acts committed by the applicant and

the risk that he could re-offend, that the interference with his rights

was not disproportionate to the aim it pursued notwithstanding that the

applicant was socially integrated in Austria.

The applicant contends that the interference with his rights was

disproportionate as his family and social ties were in Austria. He

submits that the imposition of a residence prohibition on him was

arbitrary as there existed no pressing social need for separating him

from his family.

After an examination of these issues in the light of the parties'

submissions, the Commission considers that they raise questions of fact

and law which can only be determined by an examination of the merits.

It follows that the applicant's complaint cannot be declared

inadmissible as being manifestly ill-founded within the meaning of

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

inadmissibility have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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