Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26495/95

by Shahin MUSTAFAI-NEJAD

against Austria

The European Commission of Human Rights (Second Chamber) sitting

in private on 17 January 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, 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 11 January 1995

by Shahin MUSTAFAI-NEJAD against Austria and registered on

13 February 1995 under file No. 26495/95;

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

5 December 1995 and the observations in reply submitted by the

applicant on 10 May 1996;

Having deliberated;

Decides as follows:

THE FACTS

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

summarised as follows.

The applicant is an Iranian national, born in 1970 and residing

in Vienna. In 1975, at the age of five years he arrived in Austria,

together with his mother and three elder brothers and sisters. His

father, a former high-ranking officer of the Shah regime, remained in

Iran.

On 10 February 1993 the applicant requested the Vienna Federal

Police Authority to prolong his residence permit.

On 24 March 1993 the Police Authority informed the applicant that

his residence permit would not be prolonged and that in view of

previous criminal convictions it was intended to impose a residence

prohibition (Aufenthaltsverbot) on him.

On 5 April 1993 the applicant, assisted by counsel, objected to

the Police Authority's intention to impose a residence prohibition on

him. He submitted that he had arrived in Austria in 1975 together with

his mother and three elder brothers and sisters. At that time he had

been five years old and ever since he had been living in Austria. He

hardly spoke Persian and had no family relationship in Iran any longer,

as his parents divorced in 1976 and founded new families. In Austria

he was well integrated. He ran a concert artists' agency organising

also musical and social events. He was living together with an

Austrian girl-friend he intended to marry.

On 23 August 1993 the Vienna Federal Police Authority

(Bundespolizeidirektion) imposed a ten years' residence prohibition on

the applicant. It noted that in September 1986 the applicant had been

convicted of theft and sentenced to a suspended prison term of two

months. In June 1991 he had been convicted again of theft and

sentenced to a suspended prison term of one month. In August 1992 he

had been fined by the police authorities for tumultuous behaviour

against a police officer carrying out his duty (ungestümes Benehmen

gegenüber einem Polizeibeamten). The Federal Police Authority found

that in view of the applicant's criminal record the imposition of a

residence prohibition was necessary in the public interest and that the

applicant's private interests in staying in Austria did not outweigh

the public interest.

On 27 August 1993 the applicant appealed against the residence

prohibition invoking Article 8 of the Convention.

On 14 January 1994 the Vienna Federal Security Authority

(Sicherheitsdirektion) dismissed the applicant's appeal and confirmed

the Federal Police Authority's decision. It noted that further to the

convictions taken into consideration by the Federal Police Authority,

the applicant had also been convicted in June 1988 of theft and

sentenced to a suspended term of imprisonment of three weeks and in

April 1990 he had been convicted of having caused serious bodily harm

and sentenced to a suspended term of imprisonment of nine weeks. The

applicant's criminal record therefore did not consist of two but of

four convictions.

On 8 March 1994 the applicant filed a complaint with the

Constitutional Court (Verfassungsgerichtshof) in which he submitted

that the residence prohibition violated his right to respect for his

private and family life.

On 12 March 1994 the Constitutional Court refused to entertain

the applicant's complaint and referred the case to the Administrative

Court (Verwaltungsgerichtshof). On 1 June 1994 the Administrative

Court dismissed the applicant's complaint.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that

his expulsion to Iran would violate his right to respect for his

private and family life.

2. He further complains under Article 3 of the Convention that his

expulsion to Iran would constitute inhuman treatment. He submits that

he risks persecution in Iran as in 1981 and 1982 he and his brother had

been active in an Iranian pro-monarchist exile movement and had been

interrogated on these activities by the Iranian Embassy. Furthermore,

part of his present business activities is the catering of alcoholic

beverages which constitutes an offence in Iran and if prosecuted for

this offence he would risk imprisonment between six months and two

years. He had not been able to invoke these circumstances before the

police authorities, which could have led to the issuing of an order

under Section 54 of the Aliens Act prohibiting his deportation to Iran

as he had not been informed by the authorities of the possibility to

file such a request.

3. Lastly, he complains under Article 1 of Protocol No. 7 that he

had no possibility to submit reasons against his expulsion as the

police authorities had failed to inform him about the possibility of

obtaining an order under Section 54 of the Aliens Act.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 11 January 1995 and registered

on 13 February 1995.

On 6 September 1995 the Commission decided to communicate the

application to the respondent Government and invited it to submit

observations with regard to the applicant's complaint that the

residence prohibition against him violated his right to respect for his

private and family life.

The Government's written observations were submitted on

5 December 1995. The applicant replied on 10 May 1996 after the time-

limit had expired.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention that his expulsion to Iran would violate his right to

respect for his private and family life.

Article 8 (Art. 8) of the Convention reads 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 submit that the residence prohibition imposed on

the applicant was necessary in an democratic society in view of the

applicant's criminal record. He had been convicted four times of

offences which related to the same type of unlawful behaviour. In view

of his criminal record the Austrian authorities could reasonably

conclude that the applicant's stay in Austria was likely to endanger

the country's public peace, order and safety. Moreover, he had been

warned that in case of further convictions of criminal offences a

residence prohibition would be imposed on him but nevertheless he

became recidivist. As regards the applicant's family life, the

Government submit that the applicant has family links to the country

of his origin as his father is still living there and other members of

his family, at least temporarily, moved to Iran.

This is contested by the applicant. He submits that he has been

living in Austria for nineteen years and arrived there at the age of

five. He had attended school in Austria and had only little command

of Persian. As regards his criminal record, it merely consisted of

four convictions of offences which were not particularly serious and

the sentences imposed by the criminal courts were light. The residence

prohibition imposed on him therefore constituted a disproportionate

measure which violated his rights under Article 8 (Art. 8) of the

Convention.

The Commission finds that this complaint raises serious questions

of fact and law which require an examination of the merits. This

aspect of the case cannot, therefore, be regarded as being manifestly

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

Convention, and no other ground for declaring it inadmissible has been

established.

2. The applicant further complains under Article 3 (Art. 3) of the

Convention that his expulsion to Iran would constitute inhuman

treatment as he risks persecution there. He also invokes Article 1 of

Protocol No. 7 (P7-1) in this respect.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of Article 3 (Art. 3) of the Convention or of Article 1 of

Protocol No. 1 (P1-1) as, under Article 26 (Art. 26) of the Convention,

it may only deal with a matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law.

The Commission notes that the applicant neither filed an asylum

request nor requested an order under Section 54 of the Aliens Act

prohibiting his deportation to Iran. Since the applicant was

represented by counsel throughout the proceedings on the residence

prohibition the Commission is not persuaded by the applicant's argument

that the authorities failed to inform him of the provision of Section

54 of the Aliens Act.

It follows that in this respect the applicant did not comply with

the requirement of exhaustion of domestic remedies stipulated by

Article 26 (Art. 26) of the Convention.

This part of the application must, therefore, be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint that the residence prohibition against him

violates his right to respect for his private and family life;

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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MUSTAFAI-NEJAD v. AUSTRIA

MUSTAFAI-NEJAD v. AUSTRIA

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