Search
document

Document text Analytics

KOCAK v. AUSTRIA

Doc ref: 21510/93 • ECHR ID: 001-2259

Document date: September 6, 1995

Inbound citations: 0
•
Cited paragraphs: 0
•
Outbound citations: 0

KOCAK v. AUSTRIA

Doc ref: 21510/93 • ECHR ID: 001-2259

Document date: September 6, 1995

Cited paragraphs only

Application No. 21510/93

by Ücler KOCAK

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 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

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

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 2 March 1993 by

Ãœcler KOCAK against Austria and registered on 11 March 1993 under file

No. 21510/93;

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 residing in Aksaray (Turkey).

In the proceedings before the Commission he is represented by

Mr. Helmut Blum, a lawyer practising in Linz.

On 14 June 1991 the applicant entered Austria without a valid

visa. On 20 June 1991 he registered his address with the police in

Linz.

On 21 June 1991 the applicant personally called on the Linz

Federal Police Directorate (Bundespolizeidirektion) and applied for a

visa. He was immediately arrested and his detention pending deportation

ordered by virtue of Section 57 para. 1 of the General Administrative

Procedure Act (Allgemeines Verwaltungsverfahrensgesetz - AVG) on the

grounds that he had circumvented the border control when he had entered

Austria and had indicated a fictitious address. The applicant had thus

committed administrative and criminal offences and there was a danger

that he might commit further offences and evade the deportation

procedure.

On 21 June 1991 the applicant appealed to the Independent

Administrative Senate for Upper Austria (Unabhängiger Senat für das

Land Oberösterreich).

On 25 June 1991 the applicant was deported.

On 28 June 1991 the Independent Administrative Senate for Upper

Austria declared the applicant's detention pending deportation unlawful

on the ground that, although the applicant's detention was not in

breach of substantive law, the Federal Police Directorate had

erroneously based its decision on Section 57 para. 1 of the General

Administrative Procedure Act, instead of giving a well reasoned

decision pursuant to Sections 58 and 60 of this Act. The Independent

Administrative Senate held that the Federal Police Directorate should

have stated explicitly the reasons for its assumption that there was

an imminent risk (Gefahr im Verzuge) that the applicant might commit

further offences and evade the deportation proceedings. In the absence

of such reasons, the decision of the Federal Police Directorate did not

constitute a valid legal basis for the applicant's deprivation of

liberty.

Thereafter the applicant filed a compensation claim in an amount

of 5 000 AS in respect of his unlawful arrest and detention from 21 to

25 June 1991.

By a judgment of 18 March 1992 the Linz Regional Court

(Landesgericht) dismissed the applicant's claim.

The Regional Court found that the applicant's detention was not

unlawful because of a possible procedural mistake, since there was no

violation of substantive law in his case. His detention had been

ordered in accordance with a procedure prescribed by law and did not

give raise to any compensation under Article 5 para. 5 of the

Convention or Section 7 of the law on the protection of the freedom of

persons (Personenfreiheitsschutzgesetz).

On 24 December 1992 the Linz Court of Appeal (Oberlandesgericht)

dismissed the applicant's appeal against this judgment. It confirmed

the Regional Court's view that, the form of the contested decision did

not affect in any way the lawfulness of the applicant's detention under

Section 5 para. 1 of the Aliens Police Act.

COMPLAINT

The applicant complains that the Austrian authorities have

violated his right to compensation as guaranteed by Article 5 para. 5

of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 March 1993 and registered on

11 March 1993.

By a letter of 2 May 1995 the Secretariat informed the

applicant's lawyer that it was intended to include the application in

the list of cases for examination by the Commission in the near future.

He was therefore requested to inform the Commission whether the

applicant wished to maintain his application and to submit a power of

attorney.

On 15 May 1995 the applicant's lawyer replied that he intended

to maintain the application on behalf of the applicant. He also

informed the Commission that he was unable to submit a power of

attorney in writing, since he could not contact the applicant who lived

in Turkey. He had, however, been orally authorised by the applicant

before his deportation to take all the necessary steps to defend his

legal interests.

REASONS FOR THE DECISION

The Commission notes that when the application was registered it

seemed that it had been lodged by the applicant himself as it was

written in the first person singular and the signature was illegible.

It subsequently became clear that the case had been lodged by a

lawyer and, in accordance with the Commission's usual practice, he was

requested to submit a power of attorney which is essential to establish

the validity of the application.

However, the applicant's representative has failed to provide

such authorisation from the applicant with whom he apparently has had

no contact for four years.

In these circumstances, the Commission considers that it is no

longer justified, in accordance with Article 30 para. 1 (c) of the

Convention, to continue the examination of the petition. Moreover, the

Commission finds no reasons of a general character affecting respect

for Human Rights, as defined in the Convention, which requires the

further examination of the application by virtue of Article 30 para.

1 in fine 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)

LEXI

Lexploria AI Legal Assistant