Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20933/92

by Yasemin CIMEN

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 14 September 1992

by Yasemin Cimen against Austria and registered on 12 November 1992

under file No. 20933/92;

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 1967, and presently

residing in Hohenems (Austria). Before the Commission she is

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

A. Particular circumstances of the case

In 1990 the applicant married in Turkey M. Cimen, who works and

lives in Austria. In 1991 their first child was born.

On 2 October 1990 the Dornbirn District Administrative Authority

(Bezirkshauptmannschaft) informed the applicant that, on her entry into

Austria on 31 August 1990, she had circumvented the procedures of

border control. As she had no residence permit, which was necessary

for Turkish nationals under the Austrian-Turkish Visa Agreement, her

residence in Austria was unlawful and a deportation order (Ausweisung)

would be issued. She was warned that if she did not leave the country

immediately after the deportation order had been issued, her removal

(Abschiebung) would be considered. She was requested to submit her

comments within one week.

On 9 October 1990 the applicant, who was now represented by a

lawyer, submitted her comments. She stated that she had not

circumvented the border control, but at the border check point the

border control officials had not checked the car. She also requested

that a residence permit (Sichtvermerk) with the same duration as her

husband's be issued to her.

On 12 October 1990 the District Administrative Authority issued

a deportation order against the applicant. The Authority found that

the applicant had entered Austria without a valid visa and had

circumvented the border control, as her passport did not contain a

stamp of a border control office.

On 18 October 1990 the applicant appealed invoking Article 8 of

the Convention.

On 29 October 1990 the District Authority informed the applicant

that her appeal had no suspensive effect and that she, therefore, had

to leave Austria. The District Authority added that the deportation

order did not entail any prohibition of re-entering Austria.

On 11 December 1990 the Vorarlberg Public Security Authority

(Sicherheitsdirektion) dismissed the applicant's appeal. The Public

Security Authority held that the applicant's allegation that she had

simply not been checked at the border by the border control officials

was implausible. According to a general instruction (Weisung) issued

by the Federal Ministry for the Interior (Bundesministerum für Inneres)

passports of Turkish nationals had to be stamped at every crossing of

the border. The Public Security Authority concluded that the applicant

had circumvented the border control when she entered Austria.

The Public Security Authority held further that it was not

necessary to have regard to the applicant's private and family

situation as a deportation order did not constitute a residence

prohibition (Aufenthaltsverbot). While a residence prohibition had the

aim of prohibiting the residence of aliens for a certain period, a

deportation order had no such effect. Its only purpose was the removal

of aliens who had entered Austria by circumventing the border control.

An alien against whom a deportation order had been issued had the

possibility to re-enter Austria once he or she had complied with the

necessary procedures.

On 17 December 1990 the applicant lodged a complaint with the

Constitutional Court (Verfassungsgerichtshof). She submitted that the

imposition of a deportation order for merely having circumvented the

formalities of border control was a disproportionate interference with

her rights under Article 8 of the Convention.

On 11 January 1991 the Constitutional Court granted suspensive

effect to the applicant's complaint.

On 13 December 1991 the Constitutional Court refused to entertain

the applicant's complaint. It found that the her complaint had no

prospect of success and referred to previous case law.

On 4 May 1992 the Administrative Court, to which the case had

been referred by the Constitutional Court, granted suspensive effect

to the applicant's complaint.

On 9 July 1992 the Administrative Court dismissed her complaint.

The Administrative Court held that the Public Security Authority had

rejected as implausible the applicant's argument that she had not

circumvented the border control but had simply not been checked by the

border control officials. There were no indications that the Public

Security Authority wrongly assessed the evidence before it, therefore

its decision was in accordance with the law.

Apparently in November 1992 the applicant's request for a

residence permit was dismissed by the Dornbirn District Administrative

Authority.

On 17 March 1993 the Constitutional Court, upon a complaint by

the applicant, quashed this decision. The Constitutional Court found

that in deciding whether a residence permit should be granted to the

applicant the Administrative Authority failed to take her private and

family situation into account and balance it against public interests

in refusing the residence permit. This decision therefore had violated

the applicant's rights under Article 8 of the Convention.

On 9 December 1993 the Federal Minister for the Interior

(Bundesminister für Inneres) informed the applicant that the Vorarlberg

Public Security Authority had been instructed to order the applicant

to introduce a new application for a residence permit under the

Residence Act (Aufenthaltsgesetz) within two months from abroad. If

the applicant failed to do so the Minister would consent to her

removal.

The deportation order has not been enforced.

B. Relevant domestic law

1. Section 10a para. 1 of the Aliens Act (Fremdenpolizeigesetz), as

in force at the relevant time, reads as follows:

"Aliens who have entered Austria by circumventing the border

control and who cannot be returned, may, upon a written decision, be

deported within four months after they have entered Austria."

"Fremde, die unter Umgehung der Grenzkontrolle eingereist sind

und nicht zurückgeschoben werden dürfen, können innerhalb eines

Zeitraumes von vier Monaten nach der Einreise mit Bescheid ausgewiesen

werden."

2. In its decision of 27 November 1991 the Constitutional Court held

that Section 10a para. 1 of the Aliens Act only concerned a restricted

group, namely aliens who entered Austria by circumventing the border

control. Its purpose was to combat organised illegal entry of aliens

(Schlepperunwesen). Section 10a of the Aliens Act thus served a

legitimate aim within the meaning of paragraph 2 of Article 8 of the

Convention, namely the interest of public safety, and the deportation

order was necessary for this aim. In arriving at this conclusion it

was also important that the deported alien was entitled to institute

proceedings for obtaining a permit to enter Austria by requesting a

visa from abroad. In deciding on his visa request the authorities were

obliged duly to take his family interests into account.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that

the deportation order issued against her violated her right to respect

for her private and family life, as the Authority had not been obliged

to take her family situation into account when issuing the deportation

order. She submits that the enforcement of the deportation order would

lead to a prolonged period of separation from her husband as she could

not manage alone with all the administrative formalities necessary for

obtaining a residence permit for Austria in Turkey.

2. The applicant further complains under Article 6 para. 2 of the

Convention about a violation of the principle of presumption of

innocence. She submits that in the deportation order the Austrian

authorities accused her of having circumvented the border control

although she had not been convicted of this administrative offence.

THE LAW

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

Convention that the deportation order issued against her, violated her

right to respect for her private and family life, as the Authority had

not been obliged to take her family situation into account when issuing

the deportation order.

Article 8 para. 1 (Art. 8-1) of the Convention reads as follows:

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

family life, his home and his correspondence."

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 (cf.

No. 9203/80, Dec. 5.5.81, D.R. 24 p. 239). However, in view of the

protection of the right to respect for 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 (cf. No. 9478/81, Dec. 8.12.81, D.R. 27 p. 243).

The Commission recalls further that the State's obligation to

admit to its territory aliens who are relatives of persons resident

there will vary according to the circumstances of the case. The court

has held that Article 8 (Art. 8) does not impose a general obligation

on States to respect the choice of residence of a married couple or to

accept the non-national spouse for settlement in that country (Eur.

Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985,

Series A no. 94, p. 94, para. 68).

In the present case the applicant has been married since 1990 to

a Turkish national, living and working in Austria and in 1991 a child

was born to the couple. She arrived in Austria on 31 August 1990 and,

according to the finding of the competent authorities, circumvented the

border control. On 12 October 1990 a deportation order was issued

against her, which, however, has not yet been enforced.

Having regard to the findings of the Constitutional Court in its

decision of 27 November 1991 the Commission observes further that the

deportation order issued against the applicant does not imply a

residence prohibition and that immediately after having complied with

the deportation order she could institute proceedings for obtaining a

permit to enter Austria by requesting a visa from abroad.

In these circumstances the Commission finds that the deportation

order imposed on the applicant does not show any lack of respect for

her private and family life within the meaning of Article 8 (Art. 8)

of the Convention.

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant further complains under Article 6 para. 2

(Art. 6-2) of the Convention about a violation of the principle of

presumption of innocence. She submits that in the deportation order

the Austrian authorities accused her of having circumvented the border

control although she had never been convicted of this administrative

offence.

The Commission recalls that despite the wording of Article 6

para. 2 (Art. 6-2), which secures the presumption of innocence to

"everyone charged with a criminal offence", this provision has been

consistently interpreted as also applying to situations where the

person concerned is not or no longer formally charged with a criminal

offence (cf. Eur. Court H.R., Lutz, Englert and Nölkenbockhoff

judgments of 25 August 1987, Series A no. 123, p. 23, para. 56; p. 54,

para. 35; p. 79, para. 35).

The Commission notes that the District Administrative Authority

and the Security Directorate in their respective decisions on the

deportation of the applicant considered as a preliminary question

whether the applicant had circumvented the border control.

The Commission considers that, in deciding this issue, the

authorities established the responsibility of the applicant according

to administrative law. These findings do not amount to a statement of

guilt regarding criminal responsibility in violation of Article 6 para.

2 (Art. 6-2) of the Convention (see No. 9295/81, X. v. Austria,

Dec. 6.10.82, D.R. 30 p. 227).

It follows that this part of the application is also 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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CIMEN v. AUSTRIA

CIMEN v. AUSTRIA

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