Lexploria

Application No. 21818/93

by Ibrahim SATAR

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 4 May 1993 by

Ibrahim Satar against Austria and registered on 11 May 1993 under file

No. 21818/93;

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

19 August 1994 and the observations in reply submitted by the

applicant on 19 October 1994;

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 a Turkish citizen, born in 1944, who has been

residing since 1971 in Vorarlberg. The applicant's wife moved in 1978

to Austria, and their three children were all born in Austria. In the

proceedings before the Commission, the applicant is represented by

Mr. W. Weh, a lawyer practising in Bregenz.

A. Particular circumstances of the case

On 4 February 1991 the Bregenz District Administrative Authority

(Bezirkshauptmannschaft) issued a residence prohibition against the

applicant for the period until 31 December 1995. The Authority found

that the applicant, since 1985, had repeatedly committed serious

administrative offences, namely drunken driving of a motor vehicle and

other related traffic offences. The Authority further considered that

the withdrawal of the applicant's driving licence could not alter its

decision. It also noted that no family relations in Austria were known.

On 9 August 1991 the Vorarlberg Police Directorate (Sicherheits-

direktion) dismissed the applicant's appeal. It emphasised that the

applicant had already been warned in 1985 following a conviction for

drunken driving of his car that a prohibition on residence would be

imposed upon him, if he committed further offences. On 6 July 1990,

however, the applicant again had driven his car under the influence of

alcohol and had even caused an accident. Furthermore, the Directorate

considered that the applicant's interests in staying, his family ties

in Austria and the lack of relations to Turkey were outweighed by the

pressing need to protect public safety.

On 15 November 1991 the Constitutional Court (Verfassungs-

gerichtshof), upon the applicant's request, granted a stay of execution

of the prohibition on residence.

On 24 February 1992, however, the Constitutional Court declined

to entertain the applicant's complaint as not offering sufficient

prospects of success, and referred the case to the Administrative Court

(Verwaltungsgerichtshof).

On 8 October 1992 the Administrative Court dismissed the

applicant's appeal. The Administrative Court considered in particular

that the applicant had already been warned that a prohibition on

residence would be imposed upon him, if he committed further offences.

Moreover, in the circumstances of the present case, the considerations

relating to the preservation of public security outweighed the

considerations concerning the applicant's family life.

The decision was served on 4 November 1992.

On 5 February 1993 the Bregenz Administrative Authority dismissed

the applicant's request of 27 January 1993 to lift the prohibition on

residence against him.

On 18 June 1993 the Vorarlberg Security Directorate

(Sicherheitsdirektion), on the applicant's appeal, lifted the

prohibition on residence against him, pursuant to S. 20 of the Aliens

Act (Fremdengesetz) which had entered into force on 1 January 1993.

The Directorate found that, in accordance with the new legislation, a

prohibition on residence could not be issued in the applicant's

situation as he has been resident in Austria without interruption for

ten years before the relevant offences were committed. This new

legislation had to be taken into account when deciding on a request to

lift a prohibition on residence issued before 1 January 1993.

It appears that administrative proceedings regarding the

applicant's residence permit are still pending.

Moreover, on 8 May 1994 the Bregenz Administrative Authority

imposed a fine amounting to AS 3,000 upon the applicant for having

violated, between 28 May 1993 and 3 May 1994, the relevant provisions

of the Aliens Act on the ground that he had stayed in Austria without

a residence permit. Appeal proceedings are still pending.

B. Relevant domestic law

Under Section 3 of the Austrian Aliens' Act (Fremdenpolizei-

gesetz), in force until 31 December 1992, administrative authorities

could issue a prohibition on residence against any alien who, inter

alia, was convicted more than once for serious administrative offences,

unless such an order would contravene Article 8 of the Convention.

S. 20 para. 2 of the Aliens Act, which entered into force on

1 January 1993, provides that no prohibition on residence may be issued

against an alien if it would have been possible to grant him

citizenship under S. 10 para. 1 of the Citizenship Act (i.e. if he has

been resident in Austria without interruption for 10 years), before the

relevant offences were committed, except in case of offences punishable

with more than five years' imprisonment.

COMPLAINTS

The applicant complains under Article 8 of the Convention about

an alleged interference with his right to respect for his family life.

He contends that the measure complained of was not necessary in a

democratic society, as required by Article 8 para. 2 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 May 1993 and registered on

11 May 1993.

On 7 April 1994 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 19 August 1994, after an extension of the time limit, the

Government submitted their observations. The observations in reply by

the applicant were submitted on 19 October 1994.

REASONS FOR THE DECISION

The applicant complains under Article 8 of the Convention that

the prohibition on residence issued against him violated his right to

respect for his family life.

The Government consider that the application should be struck off

the Commission's list of cases. They submit in particular that the

applicant can no longer claim to be a victim of a violation of his

right to respect for his family life, as the prohibition on residence

against him was lifted. They point out that the question of his future

residence permit will decided upon in the context of further

administrative proceedings which are still pending before the Austrian

authorities.

The applicant contests this view and maintains that his right to

respect for his family life has been violated. He considers that he

continues to be affected by the residence prohibition as long he has

not been granted a residence permit.

The Commission notes that in 1991 a prohibition on residence

until 31 December 1995 was issued against the applicant. This decision

was not enforced, and the applicant continued living in Austria. In

May 1993 his request that the prohibition on residence be lifted was

granted, in accordance with the new Aliens Act, which had entered into

force on 1 January 1993. Thus, the measure complained of under

Article 8 para. 1 of the Convention, namely the residence prohibition

issued in 1991 has meanwhile been set aside by the Austrian

authorities. In this context, the Commission observes that to the

extent that the question of the applicant's residence permit is

examined in separate proceedings which are still pending, any

complaints under Article 8 of the Convention appear premature.

In these circumstances the Commission considers that the

Convention issue underlying the present application has been resolved

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

Moreover, the Commission finds no reasons of a general character

affecting respect for Human Rights, as defined in the Convention, which

require 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) (A. WEITZEL)

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SATAR v. AUSTRIA

SATAR v. AUSTRIA

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