Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26112/95

by Ferhat ALAZCIOGLU

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 26 June 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 16 June 1994 by

Ferhat ALAZCIOGLU against Austria and registered on 4 January 1995

under file No. 26112/95;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 12 February 1996 and the observations in reply submitted

by the applicant on 1 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish national born in 1975 and presently

residing in Vienna. Before the commission he is represented by

Mr. Th. Prader, a lawyer practising in Vienna.

The facts of the case, as they have been submitted by the

parties, may be summarised as follows.

The applicant arrived in Austria in 1977 together with his

parents and his two elder brothers. Ever since he has been living in

Austria where he also attended school. He only returned to Turkey for

holiday visits and speaks German much better than Turkish.

On 28 April 1992 the Vienna Juvenile Court (Jugendgerichtshof)

convicted the applicant, inter alia, of robbery and aggravated bodily

harm and sentenced him to a 34 months' prison term, 25 months of which

were suspended on probation.

On 22 October 1992 the Vienna Federal Police Authority

(Bundespolizeidirektion) issued a ten years' residence prohibition

(Aufenthaltsverbot) under Section 3 paras. 1 and 2 (1) of the Aliens

Act (Fremdenpolizeigesetz) against the applicant. The Police Authority

found that in view of the applicant's conviction the residence

prohibition was necessary in the public interest. The Police authority

had also regard to the applicant's private and family situation. In

this respect the authority noted that the applicant's parents were

living and working in Austria and that the applicant since his early

youth had lived in Austria and had attended school there. The Police

Authority concluded, however, that in view of the seriousness of the

applicant's conviction the public interest in imposing the residence

prohibition was not outweighed by the applicant's personal situation.

The applicant did not appeal against the Federal Police

Authority's decision of 22 October 1992. However, at an unspecified

date with the assistance of a lawyer he filed a request for revocation

of the residence prohibition.

On 18 August 1993 the Vienna Federal Police Authority dismissed

the applicant's request. It found that the situation had not

substantially changed since the imposition of the residence prohibition

and that it was too early to assess whether the applicant had changed

in a positive way.

On 15 November 1993 the Vienna Federal Security Authority

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

the public interest in preventing offences of the kind committed by the

applicant outweighed his personal interest in staying, and that the

residence prohibition was necessary for the prevention of crime and the

protection of the rights of others. Moreover, the Federal Police

Authority had duly considered the applicant's personal situation and

had issued only a limited residence prohibition for a period of ten

years.

Thereupon the applicant lodged a complaint with the

Administrative Court (Verwaltungsgerichtshof) which the latter

dismissed on 4 May 1994. The Administrative Court pointed out that on

28 April 1992 the applicant had been convicted not of minor offences

but of serious and numerous crimes including the formation of a gang,

forty counts of gang robbery, theft and aggravated bodily harm.

On 15 June 1994 the applicant was taken in provisional detention

with a view to securing his removal from Austria.

On 17 June 1994 he was released from detention on his assurance

that he would voluntarily leave the country. On 24 June 1994 he left

Austria for Turkey.

On 29 June 1994 the Austrian authorities granted the applicant

a visa for returning to Austria, valid for one year, whereupon he

returned to Vienna.

On 1 August 1995 the Vienna Federal Police Authority lifted the

residence prohibition against the applicant. The Authority found that

the applicant had meanwhile shown a good conduct so that the reasons

for which the residence prohibition had been imposed had ceased to

exist.

On 21 September the Vienna Regional Governor dismissed a request

by the applicant for a residence permit. He found that the applicant,

under the provisions of the Aliens Act, had to file such a request from

abroad. According to the applicant appeal proceedings are pending

against this decision.

COMPLAINTS

The applicant complains under Article 8 of the Convention that

the residence prohibition imposed on him violates his right to respect

for private and family life.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 June 1994 and registered on

4 January 1995.

On 18 October 1995 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

12 February 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 1 April 1996.

THE LAW

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

Convention that the residence prohibition imposed on him violates his

right to respect for private and family life.

The Government submit in particular that the applicant can no

longer claim to be a victim, as the residence prohibition against him

had been lifted. The applicant contests this view and maintains that

his right to respect for his private and family life has been violated

because, following the lifting of the residence prohibition, he has not

yet been granted a residence permit.

The Commission notes that a residence prohibition was issued

against the applicant on 22 October 1992. He left Austria on 24 June

1994 and returned after he was granted a visa for returning on 29 June

1994. On 1 August 1995 the residence prohibition, which formed the

basis of the present application, has been lifted.

The Commission notes further that from June 1994 on the applicant

remained in Austria. The application does not concern a refusal to

grant a residence permit, and so the applicant's submissions that he

should now be given such a permit is not pertinent (see also Bulut v.

Austria, Comm. Report 5.5.96, para. 22, not published). The Commission

considers therefore that the matter has been resolved, within the

meaning of Article 30 para. 1 (b) (Art. 30-1-b) of the Convention.

The Commission further considers that respect for Human Rights

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

examination of the application by virtue of Article 30 para. 1 in fine

(Art. 30-1) of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES.

Secretary to the First Chamber President of the First Chamber

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

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ALAZCIOGLU v. AUSTRIA

ALAZCIOGLU v. AUSTRIA

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