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HABERER v. AUSTRIA

Doc ref: 20821/92 • ECHR ID: 001-1829

Document date: April 7, 1994

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HABERER v. AUSTRIA

Doc ref: 20821/92 • ECHR ID: 001-1829

Document date: April 7, 1994

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 20821/92

by Christoph HABERER

against Austria

The European Commission of Human Rights sitting in private

on 7 April 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 9 September

1992 by Christoph HABERER against Austria and registered on 19

October 1992 under file No. 20821/92;

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 German citizen, born in 1961. He has

studied law in Austria and is a social worker advising drug

addicts. Since 1971 he has been residing in Austria.

On 13 March 1988 the Bregenz District Court (Bezirksgericht)

convicted the applicant of offences under the Drugs Abuse Act.

On 3 July 1990 the Feldkirch Regional Court (Landesgericht)

again convicted him of smuggling and unlawful possession of drugs

and sentenced him to twelve months' imprisonment. Part of the

sentence was suspended on probation. This suspension was later

quashed.

On 23 January 1991 the Bregenz District Administrative

Authority (Bezirkshauptmannschaft), in accordance with S. 3 of

the Austrian Aliens' Act (Fremdenpolizeigesetz), issued a

residence ban for an indefinite period against the applicant, as

he had been sentenced to a prison term exceeding three months.

The Authority, having also regard to the applicant's

administrative criminal record, found that his private interests

to stay in Austria were outweighed by the public interest in the

prevention of disorder and crime. In this respect the Authority

noted in particular that the applicant had no family links in

Austria.

Under Section 3 of the Austrian Aliens' Act, administrative

authorities may issue a residence ban against any alien who,

inter alia, was convicted to a prison term exceeding three months

or has been fined more than once for serious administrative

offences unless it would contravene Article 8 of the Convention.

On 12 April 1991 the Vorarlberg Police Directorate

(Sicherheits-direktion) confirmed in detail the above decision.

It also took into account that the applicant had recently been

fined for driving his motor vehicle although his licence had been

withdrawn.

On 24 February 1992 the Constitutional Court (Verfassungs-

gerichtshof) declined to entertain the applicant's

constitutional complaint for the lack of sufficient prospects of

success, and referred the matter to the Austrian Administrative

Court (Verwaltungs-gerichtshof).

On 20 July 1992 the Administrative Court dismissed the

applicant's complaint. The Administrative Court considered that

the respective authorities had duly taken the applicant's social

and cultural links to Austria into account and correctly found

that his private interests were outweighed by his recidivism and

his administrative criminal record.

In February 1994 the applicant was still residing in

Bregenz.

COMPLAINTS

The applicant complains under Article 8 of the Convention

that his expulsion to Germany amounts to a violation of his right

to respect of his private life. He refers to his lengthy stay in

Austria.

THE LAW

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

Convention about the residence ban imposed upon him on 23 January

1991. The Commission recalls that the Convention does not grant

foreigners a right of residence in a particular State and that

the Contracting States have the right to control the entry,

residence and expulsion of aliens (see, Eur. Court H.R.,

Vilvarajah judgment of 30 October 1991, Series A no. 215, p. 34,

para. 102).

However, a residence ban imposed upon a foreigner, may

interfere with his right to respect for his private life, and

thus, in certain circumstances, give rise to an issue under

Article 8 (Art. 8), if it was not in accordance with Article 8

para. 2 (Art. 8-2) of the Convention.

In the present case the measure complained of had a legal

basis in Austrian law, namely S. 3 of the Aliens' Act, and was

aimed at "the prevention of disorder and crime", a legitimate aim

under Article 8 para. 2 (Art. 8-2) of the Convention.

As regards the question whether the interference complained

of was "necessary in a democratic society", the Commission

recalls that this phrase implies the existence of a pressing

social need. However, the Contracting States enjoy a certain

margin of appreciation in assessing whether such a need for an

interference exists, but it goes hand in hand with European

supervision (see, Eur. Court H.R., Funke judgment of 25 February

1993, Series A no. 256 A, p. 24, para. 55).

The Commission finds that the competent Austrian authorities

duly took the applicant's personal interests in remaining in

Austria into account, namely the length of his residence and his

social and cultural links to Austria. They found that, having

regard to the applicant's recidivism in drug offences and his

further record of administrative criminal offences and the fact

that the applicant had no family ties within Austria, the public

interest in imposing the residence ban outweighed his interest

in staying.

In these circumstances, the Commission considers that there

are relevant and sufficient reasons for the residence ban

challenged by the applicant. Weighing the applicant's personal

interests including his possibly forced return to Germany, and

the public interests at stake, the Commission, taking into

account the State's margin of appreciation, finds no appearance

of a violation of 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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