Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20957/92

by Aynur ÜNLÜ

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 Aynur ÜNLÜ against Austria and registered on 17 November 1992 under

file No. 20957/92;

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 1969 and 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

The applicant is the daughter of Turkish parents residing in

Austria. She joined her parents in Austria on 10 August 1990. She

claims that, due to a handicap affecting her hands, she is unable to

work and without prospect of getting married, and, therefore dependent

on her parents.

On 9 October 1990 the applicant, represented by a lawyer, asked

the Dornbirn District Administrative Authority (Bezirkshauptmannschaft)

for a visa (Sichtvermerk). She submitted that her father has been

living and working in Austria for years, that she was healthy, had no

criminal record in Turkey and that the family's accommodation was

sufficient.

On 19 October 1990 the District Administrative Authority informed

the applicant that, at her entry into Austrian territory, she had

probably 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 (Ausweisungsbescheid) 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. The applicant was requested to submit her comments within

two weeks.

In her comments of 29 October 1990 the applicant stated that she

had not circumvented the border control, but at the border check point

the border control officials did not check the car.

On 30 October 1990 the District Administrative Authority issued

a deportation order against the applicant. The District Administrative

Authority found that the applicant had entered Austria without a valid

visa and had circumvented the border control, as her passport did not

contain the stamp of a border control office.

On 30 November 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 border

crossing. The Public Security Authority concluded that the applicant

had circumvented the border control when she entered Austria.

On 8 January 1991 the applicant lodged a complaint with the

Constitutional Court (Verfassungsgerichtshof). She submitted that she

was dependent on her parents living in Austria because she was severely

handicapped and therefore unable to work and without prospect of

becoming married. The mere fact that she had entered Austria illegally

could not justify the deportation order. She also invoked Article 8

of the Convention.

On 4 February 1991 the Constitutional Court granted the complaint

suspensive effect.

On 27 November 1991 the Constitutional Court dismissed the

applicant's complaint. 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 a visa request the authorities were

obliged duly to take the person's family interests into account.

On 10 March 1992 the Constitutional Court referred the case to

the Administrative Court (Verwaltungsgerichtshof).

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

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 on 28 September 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

lodged by the applicant, quashed this decision. The Constitutional

Court found that when 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 to balance it against

the public interest in refusing the residence permit. This decision

therefore violated the applicant's rights under Article 8 of the

Convention.

According to the applicant, her request for a residence permit

has not again been decided upon. The deportation order has not yet

been enforced.

B. Relevant domestic law

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."

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 authorities 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 parents

as she could not manage alone in Turkey with all the administrative

formalities necessary for obtaining a residence permit in Austria.

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 constituted an unjustified

interference with her 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 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).

The Commission notes that the applicant is the daughter of

Turkish parents residing in Austria. She arrived in Austria on

31 August 1990 and, according to the finding of the competent

authorities, circumvented the border control. On 30 October 1990 a

deportation order was issued against her, which, however, has not yet

been enforced.

The Commission notes further that at the time the applicant

joined her parents in Austria she was 21 years old and, thus, can be

considered adult. The applicant submits that she is physically

handicapped and therefore dependent on her parents. However, she did

not submit any medical evidence or specify her handicap. In the

domestic proceedings she relied on this argument only before the

Constitutional Court and the Administrative Court. She further did not

clarify why she became dependent (again) on her parents in 1990.

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.

The Commission, therefore, 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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ÜNLÜ v. AUSTRIA

ÜNLÜ v. AUSTRIA

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