Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21630/93

by Yao Min SUN

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 15 December 1992

by Yao Min Sun against Austria and registered on 7 April 1993 under

file No. 21630/93;

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 applicant is a Chinese citizen, born in 1971. He is

currently living in Wenzou/China. Before the Commission, he is

represented by Mr. K.-P. Schrammel, a lawyer practising in Vienna.

The facts, as they have been submitted by the applicant, may be

summarised as follows.

A. Particular circumstances of the case

On 6 February 1991 the Vienna Regional Court (Landesgericht)

convicted the applicant and four other co-accused under S. 14

subpara. 2 of the Aliens Act (Fremdenpolizeigesetz) of having, from May

to December 1990, professionally organised and abetted the illegal

entry (Schlepperei) of 30 aliens. He was sentenced to a four months'

prison term, suspended on probation.

On 14 February 1991 the Vienna Federal Police Authority (Bundes-

polizeidirektion) issued a residence prohibition against the applicant

for an indefinite period. The Authority based its decision on

S. 3 subpara. 2 (5) of the Aliens Act. It noted that the applicant was

living with his parents in Austria since 1983 and that he was working

in their restaurant and that he had been convicted under S. 14 subpara.

2 of the Alien's Act. The Authority considered that imposition of a

residence prohibition on the applicant was necessary in the public

interest as the organisation of illegal entry of aliens into Austria

severely obstructed the police authorities' possibility to control the

movements of aliens. The Authority, weighing the public interests at

stake and the applicant's interest in staying, found that the

prevention of further crimes necessitated the applicant's expulsion and

that his private interests did not outweigh the public interest in

imposing the residence ban.

On 2 July 1991 the Vienna Federal Security Authority (Sicher-

heitsdirektion) dismissed the applicant's appeal. It noted that,

beside his conviction of organising and abetting the illegal entry of

aliens, the applicant had already been convicted in 1990 of illegally

using identity documents of third persons (Gebrauch fremder Ausweise).

It pointed at the utmost public interest in preventing such offences

as committed by the applicant and, moreover, took into consideration

the professional way in which he had organized the illegal entry of

aliens. The Federal Security Authority found in particular that the

applicant's offences were not just a one time lapse but constituted a

serious infringement of the public interest in securing an effective

control over immigration and movement of aliens and the prevention of

their exploitation. Thus, the applicant's important private and family

interests in staying and the lack of his links with China were clearly

outweighed by the eminent public interest at stake.

On 9 June 1992 the Constitutional Court (Verfassungsgerichtshof)

declined to entertain the applicant's complaint on the ground of no

sufficient prospects of success and referred the case to the

Administrative Court (Verwaltungsgerichtshof).

On 4 September 1992 the Administrative Court, confirming the

reasoning of the administrative authorities, dismissed the applicant's

complaint. The Administrative Court referred to its previous case-law

according to which the organisation and abetting of illegal entry of

aliens interfered with the correct implementation of the Aliens Act and

caused considerable costs for the Republic stemming from the removal

of the aliens who had been brought illegally into the country.

Furthermore, the exploitation of aliens who wished to be brought

illegally to Austria by the organisers of such transports could only

be effectively prevented by imposing residence prohibitions on the

latter.

The applicant was meanwhile expelled to China.

B. Relevant domestic law

Under S. 3 subpara 2 (5) of the Aliens' Act (Fremdenpolizei-

gesetz), as in force at the material time, administrative authorities

may issue a residence prohibition against an alien who, for his own

benefit, was involved in abetting and organising the illegal entry of

aliens.

Under S. 14 subpara. 2 of the Aliens' Act, everyone who, in a

professional manner, abets and organises the illegal entry of aliens,

shall be liable to up to 3 years' imprisonment.

COMPLAINTS

The applicant complains under Article 8 of the Convention that

the Austrian authorities, when expelling him to China, did not have

sufficiently regard to his family life. He submits, in particular,

that the expulsion was not necessary in a democratic society, as his

conviction had been sufficient to prevent him from committing further

offences.

THE LAW

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

Convention about his expulsion to China. He submits that this measure

was not necessary in a democratic society, and thus constituted an

unjustified interference with his right to respect of his family life.

Article 8 (Art. 8) of the Convention, as far as relevant,

provides as follows:

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

family life...

2. There shall be no interference by a public authority with

the exercise of this right except such as in accordance with the

law and is necessary in a democratic society ... for the

prevention of disorder and crime ..."

The Commission considers that the applicant's expulsion to China

amounted to an interference with his right to respect for his private

and family life (see, Eur. Court H.R., Abdulaziz, Cabales and

Balkandali judgment of 28 May 1985, Series A no. 94, pp. 32-33, para.

62-65; Beldjoudi judgment of 26 March 1992, Series A no. 234-B, p. 25,

para. 67). In this respect, the Commission notes that the applicant

had been living for eleven years together with his parents in Austria.

Such an interference violates Article 8 (Art. 8) of the

Convention, unless it is "in accordance with the law", pursues one of

the legitimate aims enumerated in para. 2 of that provision and is

"necessary in a democratic society" for the protection of the

aforementioned aim.

The Commission notes that the legal basis for the expulsion was

S. 3 subpara. 2 (5) of the Aliens Act. Thus, the measure complained

of was "in accordance with the law".

The Commission further considers that the measure complained of

had a legitimate aim under Article 8 para. 2 (Art. 8-2) of the

Convention, namely the prevention of disorder and crime.

As regards the question whether the interference 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

(see, Eur. Court H.R., Beldjoudi judgment, loc. cit., p. 27, para. 74).

The Commission notes that the applicant has been found guilty of

abetting and organising, in a professional manner, the illegal entry

of aliens. When issuing the residence prohibition, the Austrian

authorities duly took into account the applicant's family links in

Austria, and the lack of his links with China. However, they found

that the applicant's private interest in staying was clearly outweighed

by the gravity of the offence at stake, committed on a professional

basis.

Thus, the Commission, taking into account the margin of

appreciation left to the Contracting States, is satisfied that the

residence prohibition complained of did not go beyond what could be

regarded as necessary in democratic society for the prevention of

disorder and crime. Thus, the interference with the applicant's family

life complained of was justified under Article 8 para. 2

(Art. 8-2) of the Convention.

Consequently, there is no appearance of a violation of the

applicant's rights to respect for his private and family life as

guaranteed by Article 8 (Art. 8) of the Convention.

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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