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AS TO THE ADMISSIBILITY OF

Application No. 20840/92

by Hasan MUTLU

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 29 June 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

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 19 August 1992 by

Hasan Mutlu against Austria and registered on 23 October 1992 under

file No. 20840/92;

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 facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a Turkish national, born in 1947 and residing

in Selzthal (Austria). Before the Commission he is represented by

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

A. Particular circumstances of the case

On 2 April 1991 the Dornbirn District Administrative Authority

(Bezirkshauptmannschaft) referring to Section 3 of the Aliens Act

(Fremdenpolizeigesetz) imposed a residence prohibition

(Aufenthaltsverbot) valid until 2 April 1996 on the applicant. The

District Administrative Authority noted in particular that, between

1985 and 1990, the applicant had been convicted three times of having

caused bodily harm, and, between 1986 and 1990, several times of

administrative offences, including inter alia, drunken driving. The

applicant had been warned twice that a residence prohibition would be

imposed if he committed further offences. The District Administrative

Authority considered that the applicant's stay in Austria endangered

the public peace, order and security. As regards the applicant's

private and family situation the District Administrative Authority

noted that the applicant had been residing in Austria since 1971 and

was running an inn. It also noted that two of his daughters who were

no longer dependent on him were living in Austria and that a third

daughter, who was married and had two children was also living in

Austria. It further noted that the applicant's wife was living in

Turkey. The District Administrative Authority however concluded that

the applicant's private interests and family links did not outweigh the

public interest in imposing the residence prohibition.

On 8 August 1991 the Vorarlberg Security Directorate

(Sicherheitsdirektion) dismissed the applicant's appeal against the

residence prohibition.

It noted that on three occasions, in 1985 and in 1990, the

applicant had been convicted by criminal courts of having caused bodily

harm and sentenced to fines between 30 and 60 daily rates (Tagessätze).

Between 1986 and 1990 he had further been punished 8 times for

administrative offences, inter alia, twice in 1989 for drunken driving,

once in 1990 for driving without a driving licence and once in 1987 for

having caused a car accident and having failed to report the accident

to the authorities. All these offences were of a serious nature.

Moreover, on 11 June 1987 and 9 March 1989 the District Authority had

warned the applicant that a residence prohibition would be imposed if

he committed further serious offences. He had, nevertheless, continued

to commit administrative and criminal offences.

As regards the applicant's private and family situation, the

Security Directorate noted that the applicant had been living and

working in Austria since 1971 and had developed social and cultural

links to Austria. The Security Directorate noted further that in 1987

three of his daughters had joined him in Austria. They were adult, one

of the married with two children, the other two working and none of his

daughters living in Austria were dependent upon him. Moreover, the

applicant's wife with two more of his children was living in Turkey.

The Security Directorate concluded that his private interests and

family links did not outweigh the public interest in imposing the

residence prohibition as his stay in Austria endangered public peace,

order and security.

On 24 February 1992 the Constitutional Court refused to entertain

the applicant's complaint and referred the case to the Administrative

Court (Verwaltungsgerichtshof).

On 9 June 1992 the Administrative Court dismissed the applicant's

complaint. The Administrative Court found that the fines imposed in

the context of administrative proceedings concerned serious offences,

justifying as such a residence prohibition. Therefore, it was not

necessary to consider also the applicant's court convictions. The

Administrative Court held further that the respective authorities had

duly taken the applicant's private and family situation into account.

In the meantime, the applicant had moved to Selzthal (Tirol).

On 30 December 1992 the Lienz District Administrative Authority upon

the applicant's request, postponed the enforcement of the residence

prohibition until 30 June 1993. The residence prohibition has not yet

been enforced.

B. Relevant domestic law

According to Section 3 of the Austrian Aliens Act

(Fremdenpolizeigesetz), as in force at the relevant time,

administrative authorities may issue a residence prohibition against

an alien who, inter alia, was convicted by a court to a prison term

exceeding three months, or convicted more than once by a court, or

fined more than once for a serious administrative offence unless it

would contravene Article 8 of the Convention.

According to Section 6 para. 1 of the Aliens Act 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 a specific permission during the period of the validity

of the residence prohibition. According to Section 6 para. 2 the

authority may postpone the enforcement of the residence prohibition on

grounds of equity (aus Billigkeitsgründen).

COMPLAINTS

The applicant complains under Article 8 of the Convention that

the residence prohibition constitutes an unjustified interference with

his private and family life. He submits that if he had to leave

Austria he would could no longer earn his living. Moreover, he would

no longer be able to maintain family contacts with the part of his

family living in Austria.

THE LAW

The applicant complains under Article 8 (Art. 8) of the

Convention that the residence prohibition would constitute an

unjustified interference with his private and family life.

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

"1. Everyone has the right to respect of 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 Commission recalls that no right of an alien to enter or to

reside in a particular country, nor a right not to be expelled from a

particular country is as such guaranteed by the Convention. However,

in view of the protection of the right to respect for private and

family life afforded by Article 8 (Art. 8) of the Convention, the

expulsion of a person from a country in which his immediate family is

resident may give rise to issues under this provision (Beldjoudi v.

France, Comm. Report 6.9.90, para. 54, Eur. Court H.R., Series A

no. 234-A, p. 41).

The Commission recalls further that the question whether family

life exists is essentially a question of fact. Relationships between

adults do not necessarily attract the protection of Article 8 (Art. 8)

of the Convention without evidence of further elements of dependency,

involving more than the normal emotional ties (see No. 10375/83,

Dec. 10.12.84, D.R. 40 p. 196).

In the present case the Commission notes that the applicant has

been living and working in Austria since 1971 and has developed social

and cultural links to Austria. The Commission notes further that in

1987 three of his daughters joined him in Austria. However, these

daughters are adult, two of them are working and the third is married

and has two children. There is no indication in the applicant's

submissions that they are still dependent on him. Furthermore, his

wife with two more of their children are living in Turkey.

In these circumstances, the question arises whether or not the

residence prohibition complained of constitutes an interference with

the applicant's rights under Article 8 para. 1 (Art. 8-1) of the

Convention. However, the Commission does not have to decide this issue

as, assuming that there had been an interference, it was justified

under the terms of paragraph 2 of Article 8 (Art. 8-2) of the

Convention for the following reasons.

In order to be justified under the terms of paragraph 2 of

Article 8 (Art. 8-2) an interference must satisfy three conditions: it

must be "in accordance with the law", it must pursue one or more of the

aims enumerated in para. 2 (Art. 8-2) and it must be necessary in a

democratic society for that aim or those aims.

As regards the lawfulness of the measure complained of, the

Commission finds that the legal basis of the impugned residence

prohibition was Section 3 of the Aliens Act. There is no indication

that the residence prohibition was not issued in accordance with the

relevant law.

Moreover, the impugnated residence prohibition pursued a

legitimate aim within the meaning of Article 8 para. 2 (Art. 8-2),

namely the prevention of disorder and crime.

As regards the question whether the residence prohibition was

"necessary in a democratic society" for the above-mentioned aims, the

Commission recalls that it is for the Contracting States to maintain

public order, in particular by exercising their right, as a matter of

well-established international law and subject to their treaty

obligations, to control the entry, residence and expulsion of aliens

(Eur. Court H.R., Beldjoudi judgment of 26 March 1992, Series A

no. 234-A, p. 27, para. 74).

In the case at issue the Austrian authorities, when imposing the

residence prohibition upon the applicant, had regard to his serious

criminal recidivism. Having been warned twice about the possibility

of a residence prohibition, he had nevertheless continued to commit

offences. The Commission further notes that the competent authorities

duly considered the applicant's private and family situation.

The Commission, taking into account the margin of appreciation

left to the Contracting States, considers that the residence

prohibition complained of can reasonably be considered as "necessary

in a democratic society in the interest of ... public safety or ... for

the prevention of disorder and crime".

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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