Lexploria

Application No. 20965/92

by Fahri ÖZCAN

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 9 September 1992

by Fahri ÖZCAN against Austria and registered on 19 November 1992 under

file No. 20965/92;

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

3 December 1993, the observations in reply submitted by the

applicant on 25 January 1994 and the additional information

submitted by the applicant on 16 May 1994 upon the Rapporteur's

request;

Having deliberated;

Decides as follows:

THE FACTS

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

parties, may be summarised as follows.

The applicant, born in 1968, is a Turkish national. When lodging

his application he was resident with his family, namely his wife, also

a Turkish second-generation immigrant, and their small child, at

Hohenems, Austria. After having been deported to Turkey on

19 October 1992 he returned to Austria on 11 March 1994 where he is now

resident again with his family. Before the Commission, he is

represented by Mr. W.L. Weh, a lawyer practising in Bregenz, Austria.

The applicant's parents settled in Austria in 1976 when the

applicant was eight years old.

On 7 May 1990 the Feldkirch Administrative Authority (Bezirks-

hauptmannschaft) issued a prohibition on residence (Aufenthaltsverbot)

in Austria until 31 December 2000 against the applicant and ordered him

to leave the country within one week.

The Administrative Authority referred to S. 3 paras. 1 and 2 (1),

(5), and S. 4 of the Austrian Aliens' Act (Fremdenpolizeigesetz). The

Authority observed that a prohibition on residence could be issued

against an alien, if there were reasons to assume that his further

residence endangered the public order. Such reasons were in particular

a sentence to imprisonment of more than three months, a sentence to

imprisonment on probation of more than six months, or more than one

conviction in respect of similar criminal offences. The participation

in the illegal entry or exit of another alien also constituted such a

reason.

The Administrative Authority noted that, in 1987 the applicant

had been convicted three times by the criminal courts, mostly of

offences against property of others, and respective fines had been

imposed on him. Further, on 17 January 1990 the Feldkirch

Administrative Authority had convicted the applicant of an offence

under the Border Control Act (Grenzkontrollgesetz) and imposed a fine

of AS 15,000. Furthermore, the Administrative Authority listed

altogether more than one hundred convictions of administrative

offences, mostly traffic offences, since 1984, the last decision dating

from 27 November 1989.

The Administrative Authority considered in particular that the

prohibition on residence was only justified, if the public interests

outweighed the negative consequences for the applicant and his family.

In this respect, the Authority noted that the applicant's family was

living in Vorarlberg, that the applicant was employed and intended to

marry. However, the applicant had been warned about the possibility

of a prohibition on residence once in 1985, twice in 1988 and again in

1989. He was adult and could be expected to earn his living in Turkey.

On 16 May 1991 the Vorarlberg Security Directorate (Sicherheits-

direktion) dismissed the applicant's appeal against the prohibition on

residence. The Directorate referred to the findings of the Feldkirch

Administrative Authority and further noted that in 1990 the applicant

had twice driven a car without driver's licence, and in one case caused

an accident and bodily harm to a child. The applicant had been

convicted in respect of both events, and respective fines of AS 5,000

and of fifty daily rates of AS 70 each had been imposed. The

Directorate considered that the applicant had again breached Austrian

law. The Directorate found in particular that the applicant's personal

situation, his lengthy stay in Austria, his marriage in July 1990 and

the birth of his child in 1991 constituted serious objections to the

prohibition on residence. Nevertheless, the interest to maintain the

public order outweighed these negative consequences.

On 30 September 1991 the Austrian Constitutional Court (Ver-

fassungsgerichtshof) refused to entertain the applicant's complaint,

and transferred it to the Austrian Administrative Court (Verwaltungs-

gerichtshof) for a decision.

On 9 March 1992 the Administrative Court dismissed the

applicant's complaint. The Administrative Court considered in

particular that the Vorarlberg Security Directorate had taken the

applicant's personal circumstances into account, but given more weight

to the public interest in ordering a prohibition on residence. This

decision did not appear to be unlawful. The Administrative Court

referred to the applicant's convictions, in particular to his

conviction for participation in the illegal entry of foreigners. The

frequent committal of serious criminal offences and the public interest

in preventing border control offences justified the assumption that the

public interest in imposing a prohibition on residence outweighed the

negative consequences on the applicant's private and family life. The

Administrative Court also stated that the applicant could exercise his

profession as weaver in other countries than Austria and thereby

maintain his family. His last conviction dating from 7 July 1990, no

change of attitude could be assumed. The decision was served on

20 April 1992.

On 19 October 1992 the applicant was deported to Turkey, while

his wife and their child stayed in Austria.

On 7 September 1993 the Feldkirch Administrative Authority

dismissed the applicant's request of 27 January 1993 to lift the

prohibition on residence against him.

On 15 November 1993 the Vorarlberg Security Directorate, on the

applicant's appeal, lifted the prohibition on residence against him

referring to S. 20 of the Aliens Act (Fremdengesetz) which had entered

into force on 1 January 1993. S. 20 para. 2 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. This decision was served on the applicant's

lawyer on 23 November 1993.

On 11 March 1994 the applicant returned to Austria and joined his

family.

On 12 August 1994 the applicant was granted a residence permit,

valid until 23 April 1995.

COMPLAINTS

The applicant complains under Article 8 of the Convention that

the prohibition on residence and his deportation to Turkey violated his

right to respect for his family life. He submits in particular that,

following his deportation on 19 October 1992 he was separated from his

wife and small child until 11 March 1994 when he was allowed to return

to Austria.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 September 1992 and registered

on 19 November 1992.

On 7 September 1993 the Commission decided to communicate the

application to the respondent Government for observations on the

admissibility and merits.

On 3 December 1993, after an extension of the time limit, the

Government submitted their observations. The observations in reply by

the applicant were submitted on 25 January 1994; additional

observations were submitted by the applicant on 16 May 1994.

REASONS FOR THE DECISION

The applicant complains under Article 8 of the Convention that

the prohibition on residence and his deportation to Turkey violated his

right to respect for his family life.

The Government submit in particular that the applicant can no

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

him was lifted. The applicant contests this view and maintains that

his right to respect for his family life has been violated, as,

following his deportation to Turkey, he had been separated from his

wife and their small child for almost seventeen months.

The Commission notes that a prohibition on residence was issued

against the applicant and he was expelled to Turkey on 19 October 1992,

while his wife and small child stayed in Austria. However, the

prohibition on residence was lifted on 15 November 1993, in accordance

with provisions of the new Aliens Act, which had entered into force on

1 January 1993. The applicant returned to Austria on 11 March 1994 and

was granted a residence permit, valid until April 1995, on

12 August 1994.

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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ÖZCAN v. AUSTRIA

ÖZCAN v. AUSTRIA

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