Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14620/89

by Caslav, Slobodanka, Zaklina and

Zarko ZIKIC

against Austria

The European Commission of Human Rights sitting in private on

3 May 1993, the following members being present:

Present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 September 1988

by Caslav, Slobodanka, Zaklina and Zarko ZIKIC against Austria and

registered on 6 February 1989 under file No. 14620/89;

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 parties, may be

summarised as follows.

The applicants, a couple and their two children, are Yugoslav

nationals. The first applicant, the father, was born in 1951 and has

lived in Austria since 1970. The second applicant, his wife, was also

born in 1951. She joined him in Austria shortly after his arrival

there. Their children, the third and fourth applicants, were born in

1973 and 1974, respectively. They were brought up and attended school

in Austria. They are resident in Bürs. The first applicant is a

shift-worker.

Before the Commission the applicants are represented by

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

A. Particular circumstances of the case

On 4 March 1987 the Bludenz District Administrative Authority

(Bezirkshauptmannschaft) imposed a residence prohibition for a period

of five years, until 4 March 1992, on the first applicant. The

District Authority found in particular that, in the years 1976 - 1985

he had been punished five times for drunken driving of a motor vehicle,

and had thus endangered public peace, order and security.

On 20 October 1987 the Vorarlberg Security Directorate

(Sicherheitsdirektion) dismissed the first applicant's appeal. It

considered in particular that over the past years he had been

repeatedly fined for drunken driving, and had also committed other

traffic offences. In 1976 the Bludenz District Administrative

Authority had imposed on the first applicant a fine of AS 7.000, in

1981 a fine of AS 8.000, in 1985 a fine of AS 10.000 and in 1986 a fine

of AS 14.000, all for drunken driving. On 14 November 1985 the Bludenz

District Authority had warned the first applicant that if he committed

further serious offences, in particular driving a motor vehicle under

the influence of alcohol, a residence prohibition would have to be

imposed. On 24 November 1986 he had nevertheless driven a motor

vehicle under the influence of alcohol and had therefore been fined on

5 December 1986. After a residence prohibition had been imposed on 4

March 1987, he drove again a motor vehicle under the influence of

alcohol on 2 June 1987, a blood test showing blood alcohol of 2 per

mille. The Security Directorate concluded that repeated fines, a

suspension of his driving licence and even the warning about a

residence prohibition could not induce the first applicant to observe

the traffic regulations. His residence in Austria, therefore,

presented a danger to public peace, order and security. Personal

circumstances, especially the length of his residence as well as his

and his family's integration in Austria could not outweigh the public

interest in the residence prohibition.

On 29 September 1987 the Constitutional Court

(Verfassungsgerichtshof) annulled Section 3 of the Aliens Act

(Fremdenpolizeigesetz) as amended by Federal Law No. 555/1986 - the

legal basis for residence prohibitions - with effect from

31 December 1987.

On 18 November 1987 the first applicant lodged a complaint with

the Constitutional Court which on 7 December 1987 refused to entertain

his complaint. The Court found in particular that the first applicant

could not challenge Section 3 of the Aliens Act, which had been

annulled by its judgment of 29 September 1987. The Constitutional

Court referred the complaint to the Administrative Court

(Verwaltungsgerichtshof) on 20 January 1988.

On 2 March 1988 the Administrative Court dismissed the complaint.

It found that neither the Aliens Act nor Article 8 of the Convention

required the authority to balance the residence prohibition against

less restrictive administrative measures in the present case, as the

first applicant had been punished for repeated and serious offences and

the prohibition of his further residence in the country was necessary

for the maintenance of public peace and order, for the prevention of

further offences and for the protection of the health of others

(Section 3 para. 3 lit. b, d and e of the Aliens Act). The

Administrative Court further noted that the first applicant had not

been deterred from committing further serious offences either by the

warning about or by the imposition of the residence prohibition.

By letter of 5 June 1990 the first applicant was informed by the

Bludenz District Administrative Authority that he had to leave the

country within a period of two weeks after receipt of the letter,

otherwise punitive and coercive measures (detention pending

deportation) would be taken. On 3 December 1990 the first applicant

was granted a visa by the Bludenz District Administrative Authority and

on 20 November 1991 the same authority granted him a visa valid until

31 January 1993. On 10 January 1992 the Vorarlberg Security

Directorate, which had received instructions from the Federal Ministry

of the Interior, instructed the Bludenz Administrative Authority, with

an express reference to the application pending before the European

Commission of Human Rights, to refrain from deporting the first

applicant until further notice.

B. Relevant domestic law

Section 3 of the Austrian Aliens Act (Fremdenpolizeigesetz) in

the former version in force until 31 December 1987, insofar as relevant

to the case, reads as follows:

[Translation]

"(1) A residence prohibition may be imposed on aliens whose

residence in the Federal territory endangers public peace,

order or security, or contravenes other public interests.

(2) In particular, a residence prohibition may be imposed on

aliens,

a) on whom a sanction has been imposed by a final decision of

a domestic administrative authority for serious or repeated

offences;

b) ....

(3) The authority, when imposing a residence prohibition, shall

balance the personal situation of the alien, especially the

right to respect for his private and family life, against

the public interests supporting the residence prohibition.

An interference with this right is only lawful if it is

necessary

a) for the protection of the internal and external security of

the Republic of Austria,

b) for the maintenance of public peace and order,

c) for the protection of the economic well-being of the

Republic of Austria,

d) for the prevention of crime,

e) for the protection of the health and morals of

others, or

f) for the protection of the rights and freedoms of

others."

[German]

"(1) Gegen Fremde, deren Aufenthalt im Bundesgebiet die

öffentliche Ruhe, Ordnung oder Sicherheit gefährdet oder

anderen öffentlichen Interessen zuwiderläuft, kann ein

Aufenthaltsverbot erlassen werden.

(2) Insbesondere kann ein Aufenthaltsverbot gegen Fremde

erlassen werden,

a) die von einer inländischen Verwaltungsbehörde wegen

schwerwiegender oder wiederholter Übertretungen

rechtskräftig bestraft worden sind;

b) ....

(3) Die Behörde hat bei Erlassung eines Aufenthaltsverbotes die

persönlichen Verhältnisse des Fremden, insbesondere das

Recht auf Achtung seines Privat- und Familienlebens, gegen

die für die Erlassung eines Aufenthaltsverbotes sprechenden

öffentlichen Interessen abzuwägen. Ein Eingriff in dieses

Recht ist nur zulässig, wenn dieser

a) zum Schutz der inneren oder äusseren Sicherheit der Republik

Österreich,

b) zur Aufrechterhaltung der öffentlichen Ruhe und Ordnung,

c) zum Schutz des wirtschaftlichen Wohles der Republik

Österreich,

d) zur Verhinderung von strafbaren Handlungen,

e) zum Schutz der Gesundheit und der Moral anderer,

oder

f) zum Schutz der Rechte und Freiheiten anderer

notwendig ist."

Section 6 para. 1 of the Aliens Act reads as follows:

[Translation]

"(1) An alien on whom a residence prohibition has been imposed

has to leave the territory where residence has been

prohibited within a week after the decision becomes

enforceable. During the period of validity of the residence

prohibition he must not re-enter this territory without

permission."

[German]

"(1) Der Fremde, gegen den ein Aufenthaltsverbot erlassen worden

ist, hat das Gebiet in dem ihm der Aufenthalt verboten ist,

innerhalb einer Woche nach Rechtskraft des Bescheides zu

verlassen. Er darf dieses Gebiet während der Geltungsdauer

des Aufenthaltsverbotes ohne Bewilligung nicht wieder

betreten."

Section 25 of the Passport Act (Paßgesetz) reads, in its passages

relevant to the case, as follows:

[Translation]

"(1) A visa may be issued to an alien upon his request, if no

reasons for a refusal as mentioned in para. 3 exist.

(3) The issuing of a visa shall be refused if

...

c) an enforceable residence prohibition had been imposed on the

applicant, unless he had been issued a permission according

to Section 6 para. 1 of the Aliens Act, Federal Law Gazette

No. 75/1954 ..."

...

[German]

"(1) Ein Sichtvermerk kann einem Fremden auf Antrag erteilt

werden, sofern kein Versagungsgrund gemäß Abs. 3 vorliegt.

(3) Die Erteilung eines Sichtvermerks ist zu versagen, wenn

...

(c) gegen den Sichtvermerkswerber ein rechtskräftiges

Aufenthaltsverbot besteht, es sei denn, daß ihm eine

Bewilligung gemäß Paragraph 6 Abs. 1 des

Fremdenpolizeigesetzes, BGBl. Nr. 75/1954, erteilt worden

ist ..."

Section 27 of the Passport Act (Paßgesetz) provides:

[Translation]

"(1) A visa shall be declared invalid by the authority if

subsequently facts become known or occur, which would have

justified the refusal of a visa or would justify it.

(2) If a residence prohibition imposed on an alien becomes

enforceable, the visa issued to him becomes invalid."

[German]

"(1) Ein Sichtvermerk ist von der Behörde für ungültig zu

erklären, wenn nachträglich Tatsachen bekannt werden oder

eintreten, die die Versagung des Sichtvermerks

gerechtfertigt hätten oder rechtfertigen würden."

(2) Erwächst ein gegen einen Fremden verhängtes

Aufenthaltsverbot in Rechtskraft, wird der ihm erteilte

Sichtvermerk ungültig."

COMPLAINTS

1. The applicants complain under Article 8 of the Convention

that the residence prohibition was not imposed in accordance with law

on the first applicant, as the authority had applied a law which had

already been declared unconstitutional by the Constitutional Court.

Furthermore they consider the residence prohibition imposed on the

first applicant as a disproportionate measure.

2. Under Article 8 of the Convention the applicants also

complain about the delay in the proceedings before the Vorarlberg

Directorate of Security on the first applicant's appeal against the

residence prohibition.

3. Lastly the applicants complain under Article 6 para. 1 of

the Convention of the unfairness of and the unreasonable delay in the

appeal proceedings before the Security Directorate.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 September 1988 and

registered on 6 February 1989.

On 1 July 1991 the Commission decided to communicate the

application to the respondent Government and request them to submit

their written observations on its admissibility and merits. The

Government's observations were submitted on 2 January 1992. On

10 April 1992 the applicants submitted their observations in reply.

THE LAW

1. The applicants complain under Article 8 (Art. 8) of the

Convention that the residence prohibition imposed on the first

applicant constituted an unjustified interference with their right to

respect for private and family life as it was neither in accordance

with Austrian law nor necessary in a democratic society for one of the

aims mentioned in Article 8 para. 2 (Art. 8-2).

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

"1. Everyone has the right to respect for 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

freedom of others."

The Government submit that the residence prohibition imposed on

the first applicant, which expired on 4 March 1992, had not been

enforced. Moreover, he had been granted a visa on 3 December 1990 and

again on 20 November 1991, the latter valid until 31 January 1993.

These visas had a suspensive effect on the enforcement of the residence

prohibition. Thus, since 3 December 1990 the applicants could no

longer claim to be victims of a violation of the Convention.

The applicants contend that they are still victims within the

meaning of Article 25 (Art. 25) of the Convention. Though the

residence prohibition was never enforced, it continued to be upheld and

the legal position of the first applicant continued to be uncertain.

To the applicants' knowledge the residence prohibition imposed on the

first applicant was still in force and no suspension of its enforcement

or other temporary toleration of the first applicant's stay in Austria

could change the fundamental problem of the residence prohibition. In

the applicants' view the visa issued on 20 November 1991 to the first

applicant was legally invalid under the mandatory provisions of Section

27 para. 2 of the Passport Act, as it was issued in spite of a

residence prohibition imposed on the first applicant. The first

applicant could therefore remain in Austria without a residence permit

only by virtue of the instruction to refrain from deporting him, issued

by the Ministry of the Interior. The applicants submit that also in

the Beldjoudi case, the European Court of Human Rights had found a

violation of Article 8 (Art. 8) of the Convention although the

applicant had not been deported (judgment of 26 March 1992, Series A

no. 234-A). Therefore, already the imposition of a residence

prohibition and not its enforcement constitutes an interference with

Article 8 para. 1 (Art. 8-1) of the Convention.

Under Article 25 para. 1 (Art. 25-1) of the Convention the

Commission may only deal with an application if the applicant can claim

to be a victim of a violation, by one of the High Contracting Parties,

of the rights set forth in the Convention or its Protocols.

On the question whether the applicants may still claim to be

victims under Article 25 para. 1 (Art. 25-1) of an alleged violation

of Article 8 (Art. 8) of the Convention, the Commission observes that

the residence prohibition expired already on 4 March 1992 and can no

longer be enforced. The Commission notes further that even before that

date no steps for its enforcement have been taken and that the

applicants were able to stay together in Austria.

Moreover, on 3 December 1990 and again on 20 November 1991 the

first applicant had been issued a visa, the latter valid until 31

January 1993. It is true that the applicants contest the legal

validity of the visas issued to the first applicant, as they were

issued despite a residence prohibition imposed on the first applicant.

However, the Commission notes that according to Sections 25 para. 3 and

27 para. 1 of the Passport Act a visa issued despite an enforceable

residence prohibition would have to be revoked by the authorities. The

applicants, however, do not submit that the authorities actually did

revoke the first applicant's visa.

Lastly, it transpires from the Government's submissions, not

disputed by the applicants, that the residence prohibition imposed on

the first applicant lasted from 4 March 1987 to 4 March 1992. The

applicants have not argued that after 4 March 1992, the date when the

residence prohibition imposed on the first applicant expired, a new

residence prohibition was imposed on him.

In these circumstances the Commission concludes that the

applicants' complaint under Article 8 (Art. 8) of the Convention is

resolved in such a way that, in the particular circumstances of the

present application, they are no longer able to claim to be victims

within the terms of Article 25 para. 1 (Art. 25-1) of the Convention

(see No. 9856/82, Dec. 14.5.87, D.R. 52 p. 38, at p. 73; No. 18417/91,

Dec. 2.12.92, unpublished; No. 15291/89, Dec. 11.1.93, unpublished).

It follows that this part of the application is inadmissible under

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

2. The applicants also complain under Article 6 para. 1

(Art. 6-1) of the Convention of the unfairness of, and the unreasonable

delay in, the proceedings before the Security Directorate. Under

Article 8 (Art. 8) of the Convention the applicants complain that the

Security Directorate had delayed its decision on the appeal of the

first applicant to prevent him from benefiting from the Constitutional

Court's test case ruling on Section 3 of the Aliens Act.

The Commission has examined these complaints under Article 6

(Art. 6) of the Convention.

It recalls however, that a decision as to whether an alien should

be allowed to stay in a country does not involve the determination of

civil rights or of a criminal charge within the meaning of Article 6

(Art. 6) of the Convention (No. 8118/77, Dec. 19.3.1981, D.R. 25 p.

105, at p. 119).

It follows that Article 6 para. 1 (Art. 6-1) of the Convention

is not applicable in the present case. The remainder of the

application is therefore incompatible ratione materiae with the

provisions of the Convention 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 Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

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ZIKIC v. AUSTRIA

ZIKIC v. AUSTRIA

LEXI