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AS TO THE ADMISSIBILITY OF

Application No. 20807/92

by Mikdat BULUT

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 29 September 1992

by Mikdat BULUT against Austria and registered on 13 October 1992 under

file No. 20807/92;

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 May

1994 and the observations in reply submitted by the applicant on

4 August 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen born in 1969. He is

represented before the Commission by Mr. W.L. Weh, a lawyer practising

in Bregenz.

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

summarised as follows.

The particular circumstances of the case

In 1978, that is at the age of nine, the applicant moved from

Turkey to Austria, where his father ran a restaurant.

In 1987, 1989 and 1990 the applicant was convicted of

administrative offences, including one offence under the Passports Act

(Paßgesetz).

On 23 March 1990 the applicant was convicted by the Innsbruck

Regional Court (Landesgericht) of attempting to bribe civil servants

to grant work permits. His nullity appeal was rejected by the Supreme

Court (Oberster Gerichtshof) on 7 August 1990. His sentence was

increased by the Innsbruck Court of Appeal (Oberlandesgericht) on

3 October 1990 to nine months' imprisonment, suspended for 3 years.

The proceedings subsequently formed the subject matter of Application

No. 17358/90 before the Commission.

On 12 December 1990 the applicant was convicted by the Innsbruck

Regional Court of defaming a person by informing the police that the

person had borrowed a car from the applicant and failed to return it,

although he knew the allegation was not true. He was fined 150 day

rates.

On 21 December 1990 the Innsbruck Federal Police Department

(Bundespolizeidirektion) issued a residence prohibition against the

applicant, referring to the conviction of 23 March 1990 and the

administrative offences. It recalled that Article 3 para. 1 of the

Aliens Act (Fremdenpolizeigesetz) provided that a residence prohibition

could be made where it was reasonable to suppose that an alien's

presence in Austria endangered the peace, public order or safety or ran

counter to any of the other public interests contained in Article 8

para. 2 of the Convention. With particular reference to the conviction

of 23 March 1990, the Department found that the applicant was not

prepared to accept the Austrian legal order. The Tyrol Security

Directorate (Sicherheitsdirektion) rejected the applicant's appeal on

14 June 1991, and on 30 September 1991 the Constitutional Court

(Verfassungsgerichtshof) declined to deal with the applicant's

constitutional complaint.

On 12 June 1992 the Administrative Court (Verwaltungsgerichtshof)

rejected the applicant's administrative complaint. In connection with

the applicant's argument that the administrative authorities had struck

the wrong balance by putting public interests before the applicant's

private interests, the Administrative Court noted that the

administrative authorities took into account all the relevant factors.

It pointed out that the applicant's wife had only joined him three

years previously, and so would not be as adversely affected as he, and

the couple's children were very young. The applicant could exercise

his profession as waiter in other countries. The Administrative Court,

too, laid stress on the fact that the applicant, by attempting to bribe

civil servants to grant work and residence permits, had behaved in a

way likely to disrupt the due process of Austrian immigration law. It

saw the public interest in the residence prohibition as clearly

outweighing its negative effect on the applicant.

The applicant is currently in Austria. He has received a series

of permits to re-enter Austria, and a review of the residence

prohibition is planned.

COMPLAINTS

The applicant alleges that the residence prohibition against him

is in violation of Article 8 of the Convention. He points out that he

has been in Austria since the age of nine, and his father since 1971.

Four of his brothers went to Austria with him, his youngest brother was

born in Austria. He is married and has two children who were born in

Austria in 1988 and 1989. He states that German is the language

principally spoken in the family, and he has only been on holiday in

Turkey three times since he left in 1978. He has no relatives in

Turkey.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 September 1992 and

registered on 13 October 1992.

On 2 March 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

27 May 1994. The applicant replied on 4 August 1994.

THE LAW

The applicant alleges that the residence prohibition which has

been made against him and which is still in force violates his rights

under Article 8 (Art. 8) of the Convention, which provides 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 ... the economic well-being of the country, for the prevention

of disorder or crime, ... or for the protection of the rights and

freedoms of others."

The Government note that the applicant is still in fact on

Austrian territory, notwithstanding the residence prohibition. They

accept that the applicant has been in Austria for a long time, but also

note that the residence prohibition was imposed because the applicant

had committed the serious offence of attempting to incite civil

servants to abuse their official authority. Further, they note that

the authorities and courts which have considered the case have

carefully weighed the conflicting private and public interests, and

have found the public interests to prevail. As regards the applicant's

particular position, they consider that there is no bar to the

applicant's wife and children leaving Austria with him, so that he is

free to continue his family life elsewhere.

The applicant considers that there is no "pressing social need"

to maintain the residence prohibition. In particular he points out

that his nine months' prison sentence was suspended, and that a prison

sentence may only be suspended when "the mere threat of execution [of

the sentence] would be sufficient to prevent ... the commission of

further crimes" (Article 43 of the Criminal Code). He cannot

understand how, if there was no pressing social need to impose a prison

sentence, there can be a pressing social need to deport him. He

considers that the negative aspects of his return to a country with

which he has no family, cultural, school or job ties far outweigh the

- in any event minimal - public interest in removing him.

The Commission finds that the application raises complex issues

of fact and law which must be examined on the merits. It cannot

therefore be rejected as being manifestly ill-founded within the

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

grounds for inadmissibility have been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the First Chamber President of the First Chamber

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

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BULUT v. AUSTRIA

BULUT v. AUSTRIA

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