Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30338/96

by Erkan KELES

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 27 February 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 23 January 1996

by Erkan KELES against Austria and registered on 28 February 1996 under

file No. 30338/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen, born in Austria in 1979. He

had been residing in Innsbruck but is staying at present in Turkey.

Before the Commission he is represented by Mr. P. Delazer, a lawyer

practising in Innsbruck.

On 20 May 1994 the applicant, was convicted by the Innsbruck

Regional Court (Landesgericht) of, inter alia, theft and sentenced to

fifteen months' imprisonment suspended for a probationary period of

three years.

Having regard to the above conviction, the Innsbruck Federal

Police Authority (Bundespolizeidirektion), on 13 October 1994, imposed

a residence prohibition on the applicant. The applicant, represented

by counsel, appealed and submitted that the residence prohibition

constituted a disproportionate measure since he was born and brought

up in Austria and his family was living there.

On 10 April 1995 the Innsbruck Federal Security Authority

(Sicherheitsdirektion) dismissed the applicant's appeal. It found that

notwithstanding his private and family situation the residence

prohibition was necessary in the public interest in view of the serious

and numerous criminal offences the applicant had committed.

On 11 May 1995 the applicant introduced a complaint with the

Constitutional Court (Verfassungsgerichtshof). On 13 June 1995 the

Constitutional Court refused to deal with the complaint and referred

the case to the Administrative Court (Verwaltungsgerichtshof). The

proceedings before the Administrative Court are still pending.

On 3 May 1995, while the applicant was kept in detention on

remand with regard to further charges of theft, the Innsbruck Federal

Police Authority issued an order for detention pending expulsion. It

found that the residence prohibition had become enforceable and in view

of the applicant's previous criminal behaviour it was necessary to

impose such detention in order to ensure his removal from Austria after

his release from detention on remand.

On 5 May 1995 the applicant was again convicted of theft and

sentenced to an unsuspended term of imprisonment of 3 months, the

probationary period for his previous sentence was extended to 4 years.

On 12 May 1995 the applicant, represented by counsel, introduced

a complaint against the detention order of 3 May 1995 with the

Administrative Court and requested that legal aid be granted. He

submitted in particular that Section 47 para. 2 of the Aliens Act

(Fremdengesetz) provided that aliens under sixteen years of age be only

taken into detention with a view to expulsion if appropriate

accommodation and care was provided for. In his view these conditions

were not met at the Innsbruck Police Prison and his detention with a

view to expulsion would therefore be unlawful.

On 4 July 1995 the applicant was transferred from the Innsbruck

Regional Court's Prison to the Police Prison.

On 28 July 1995 the Administrative Court refused to grant legal

aid as it considered that the applicant's complaint was clearly without

prospect of success. On the same day, in a separate decision, the

Administrative Court dismissed the applicant's complaint against the

detention order. It found that the order for detention with a view to

expulsion was lawful because it was necessary in order to secure the

applicant's removal. As regards the applicant's argument under

Section 47 para. 2 of the Aliens Act, the Administrative Court found

that from the heading of Section 47, i.e. "Modalities of Detention With

a View to Expulsion" (Durchführung der Schubhaft) it was apparent that

this provision merely concerned the conditions of detention. The

conditions of detention, however, were of no relevance for the

examination of the lawfulness of a detention order.

On 7 August 1995 the applicant was removed from Austria to Turkey

and his detention with a view to expulsion ceased on that day.

COMPLAINTS

The applicant, invoking Article 5 para. 4 of the Convention,

complains about the refusal of the Administrative Court to take into

consideration his argument that his detention with a view to expulsion

had been unlawful because the premises where he had been detained did

not meet the requirements of Section 47 para. 2 of the Aliens Act. In

his view the decision of the Administrative Court was wrong because the

said provision did not merely concern the conditions but also the

lawfulness of his detention. He further complains that the

Administrative Court refused to grant legal aid for the proceedings

concerning the detention order.

The applicant also submits that a complaint to the Constitutional

Court about the detention order would not have been an effective

remedy, because the Constitutional Court most probably would have

refused to deal with his complaint.

THE LAW

The applicant complains about the refusal of the Administrative

Court to take into consideration his argument that his detention with

a view to expulsion had been unlawful because the premises where he had

been detained did not meet the requirements of Section 47 para. 2 of

the Aliens Act.

The Commission finds that the applicant's above complaint

concerns the alleged unlawfulness of his detention with a view of to

expulsion and consequently falls to be considered under Article 5

para. 1 (f) (Art. 5-1-f) of the Convention, which reads as follows:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

...

f. the lawful arrest or detention of a person to prevent his

effecting an unauthorised entry into the country or of a person

against whom action is being taken with a view to deportation or

extradition."

The Commission need not determine whether or not the applicant

has exhausted domestic remedies as required by Article 26 (Art. 26) of

the Convention because the application is, in any event, manifestly

ill-founded for the following reasons.

The Commission recalls that in the Bizzotto case the European

Court of Human Rights has found that where a court, on the basis of the

law in force, had made arrangements for implementing a sentence, such

as the order that a term of imprisonment be effected in a specially

equipped centre for drug addicts, the fact that the detention of the

person concerned had not been carried out in conformity with this order

cannot, in principle, have any bearing on the lawfulness of the

deprivation of liberty (Eur. Court HR, Bizzotto v. Greece judgment of

15 November 1996, para. 34, to be published in Reports 1996-I).

The Commission finds that the above considerations also apply to

the present case and notes in this respect that, according to the

findings of the Administrative Court, Section 47 para. 2 of the Aliens

Act on which the applicant relies in order to show that the detention

order was unlawful, concerns the modalities of detention with a view

to expulsion. Modalities of detention, however, do not raise an issue

as to the lawfulness of deprivation of liberty.

Accordingly, there is no appearance of a violation of the

applicant's rights under Article 5 para. 1 (f) (Art. 5-1-f) of the

Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further complains that the Administrative Court

refused to grant legal aid for the proceedings concerning the detention

order. Also in this respect he relies on Article 5 para. 4

(Art. 5-4) of the Convention which reads as follows:

"Everyone who is deprived of his liberty by arrest or detention

shall be entitled to take proceedings by which the lawfulness of

his detention shall be decided speedily by a court and his

release ordered if the detention is not lawful."

However, the Commission need not determine whether Article 5

para. 4 (Art. 5-4) of the Convention entitles a person to

representation by an ex-officio lawyer appointed under a legal aid

scheme in circumstances as those of the present case, since the

applicant, in any event, was represented by a counsel of his choice

throughout the domestic proceedings.

Accordingly, there is no appearance of a violation of the

applicant's rights under Article 5 para. 4 (Art. 5-4) of the

Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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KELES v. AUSTRIA

KELES v. AUSTRIA

LEXI