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AS TO THE ADMISSIBILITY OF

Application No. 20001/92

by Muharrem DENIZ

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 31 August 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

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 6 May 1992 by

Mr. Muharrem DENIZ against Austria and registered on 15 May 1992 under

file No. 20001/92;

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

of Procedure of the Commission;

Having regard to :

- the observations submitted by the respondent Government on

25 June 1993 and the observations in reply submitted by the

applicant on 11 August and 7 September 1993;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen born in 1971 and currently

resident in Turkey. Before the Commission he is represented by

Mr. Ludwig Weh, a lawyer practising in Bregenz, Austria.

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

parties, may be summarised as follows.

Particular circumstances of the case

The applicant left Turkey in 1975 together with his parents and

siblings and settled in Austria. Subsequently he has briefly visited

Turkey an unknown number of times. His first language is German and his

second Turkish.

On 10 October 1985 the Feldkirch Regional Court (Landesgericht)

convicted the applicant of aggravated theft (schwerer Diebstahl)

involving eighteen separate counts of shoplifting committed in 1985.

The Regional Court deferred sentencing the applicant for a probationary

period of three years in application of Section 13 of the Juvenile

Court Act (Jugendgerichtsgesetz).

On 2 October 1986 the Regional Court convicted the applicant of

burglary (Einbruchsdiebstahl) involving eleven counts of burglary and

nine further counts of shoplifting committed in 1985 and 1986. The

applicant was found to have burglarised cash boxes of newspaper stands.

He was sentenced to three months' suspended imprisonment.

On 27 November 1986 the Regional Court sentenced the applicant

to a fine of 7.200 AS having regard to his recidivism on

2 October 1986.

On 18 March 1987 the Dornbirn District Administrative Authority

(Bezirkshauptmannschaft) informed the applicant that his expulsion was

being considered.

On 15 October 1987 the Regional Court convicted the applicant of

a burglary committed in May 1987 and sentenced him to a fine of

27.000 AS.

On 24 February 1988 the Feldkirch District Administrative

Authority again informed the applicant that his expulsion was being

considered.

In 1989 the applicant was twice ordered by the Feldkirch District

Administrative Authority to pay a fine for having violated the Border

Control Act (Grenzkontrollgesetz) as well as a fine for having violated

the Passport Act (Passgesetz). The fines in total amounted to 6.000 AS.

On 31 January 1990 the applicant's residence permit expired.

On 23 April 1990 the District Administrative Authority pursuant

to Section 3 of the Aliens Act (Fremdenpolizeigesetz) imposed a

residence prohibition (Aufenthaltsverbot) on the applicant valid until

31 December 2000.

In June 1990 the applicant was deported to Turkey. On

25 January 1991 the Vorarlberg Security Directorate

(Sicherheitsdirektion) dismissed the applicant's appeal against the

decision of 23 April 1990.

On 10 April 1991 the Constitutional Court (Verfassungsgerichts-

hof) granted the applicant's complaint suspensive effect. On

10 June 1991, however, it refused to entertain it, considering that it

had no prospect of success in the light of the case-law of the Court

as regards Section 3 of the Aliens Act.

On 28 October 1991 the Administrative Court (Verwaltungs-

gerichtshof) dismissed the applicant's further complaint. The decision

was served on his lawyer on 6 November 1991.

In February and May 1993 the applicant requested that his

residence prohibition be lifted in accordance with Sections 20 and 26

of the 1992 Aliens Act (Fremdengesetz).

On 1 September 1993 the Feldkirch District Administrative

Authority rejected the applicant's request. His appeal is apparently

still pending.

Relevant domestic law

According to Section 3 of the Austrian Aliens Act, as in force

at the relevant time, administrative authorities could impose a

residence prohibition on an alien if, inter alia, he was convicted by

a court and sentenced to a prison term exceeding three months,

convicted more than once by a court or fined more than once for a

serious administrative offence, and provided the prohibition would not

contravene Article 8 of the Convention.

An alien on whom a residence prohibition has been imposed has to

leave Austria within a week after the decision has become enforceable

and must not re-enter Austria without specific permission during the

period of the validity of the residence prohibition (Section 6

para. 1).

A residence prohibition shall be lifted on request or ex officio

if the grounds for imposing it no longer exist. A prohibition may only

be imposed on a foreigner who has spent over ten years in the country

if he has committed an offence punishable by more than five years'

imprisonment (Section 20, subsection 2 and Section 26 of the Aliens

Act, both provisions as amended in 1992).

COMPLAINT

The applicant complains that his expulsion and residence

prohibition violate his right to respect for his private and family

life as enshrined in Article 8 of the Convention. He submits that prior

to his deportation he had lived in Turkey only up to the age of four.

His whole family is living in Austria; his first language is German and

he has no knowledge of Turkish culture.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 May 1992 and registered on

15 May 1992.

On 10 February 1993 the Commission decided to communicate the

application to the respondent Government and to invite them to submit

written observations on the admissibility and merits of the

application.

After an extension of the time-limit the Government's

observations were submitted on 25 June 1993 and the applicant's

observations in reply on 11 August and 7 September 1993.

THE LAW

The applicant complains that his expulsion and residence

prohibition violate his right to respect for his private and family

life as enshrined in Article 8 (Art. 8) of the Convention. He submits

that prior to his expulsion he had never lived in Turkey, that his

whole family is living in Austria, that his first language is German

and that he has no knowledge of Turkish culture.

Article 8 (Art. 8) of the Convention reads:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

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 national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The Government submit that the application is manifestly

ill-founded. The residence ban was necessary in the public interest for

the prevention of disorder or crime, as well as for the protection of

the rights and freedoms of others. The Government refer to the

essential interest in preventing offences against property such as

those committed by the applicant. Between 1984 and 1987 he had

committed a large number of partly aggravated offences. While the

damage caused by them was not particularly significant, the manner in

which they were carried out cannot be overlooked. The penalties imposed

on the applicant were, however, not sufficient in order to deter him

from further criminal or administrative offences. The Government recall

that in 1987, shortly after the applicant had been informed by the

authorities that a residence ban was being considered, he had again

committed a burglary. Although the applicant committed no further

criminal offences after being informed, in February 1988, of the

possibility that a residence prohibition be imposed, he committed

several administrative offences. When subsequently considering whether

to issue a residence ban, the authorities also observed that the

applicant was unemployed. In the assessment of the different interests

at stake, the applicant's family circumstances were, however, also duly

taken into account.

The applicant maintains that prior to his expulsion to Turkey he

had lived in that country only up to the age of four, when he had

arrived in Austria together with his whole family. His offences were

of a minor nature and were all committed shortly after he had reached

the age of criminal responsibility. There was a three year long

interval between his last criminal offence and the imposition of a

residence prohibition. His administrative offences were only a

consequence of the Austrian system whereby no further visas are granted

while proceedings regarding a residence prohibition are pending. Whilst

accepting that the residence prohibition was issued in accordance with

the law and had an acceptable aim, the applicant argues that it was

disproportionate to that aim and not necessary in a democratic society.

The Commission has made a preliminary examination of the

application in the light of the submissions by the parties. It

considers that it raises questions of fact and law of such a complex

nature that their determination requires an examination on the merits.

The application cannot therefore be declared inadmissible as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other reason for declaring it

inadmissible has been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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DENIZ v. AUSTRIA

DENIZ v. AUSTRIA

LEXI