Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16714/90

by Hasan KOSE

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 10 February 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 23 May 1990 by

Hasan Kose against Austria and registered on 13 June 1990 under file

No. 16714/90;

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 Turkish citizen who, until his deportation on

30 October 1987, lived in Frastantz in Vorarlberg, Austria. He is

represented before the Commission by Mr. W. L. Weh, a lawyer practising

in Bregenz. The facts of the application as submitted by the

applicant's representative may be summarised as follows.

On 5 October 1987 the Feldkirch District Authority (Bezirkshaupt-

mannschaft) ordered the applicant's provisional detention pursuant to

Section 5 para. 1 of the Aliens Act (Fremdenpolizeigesetz) on the

ground that a residence prohibition (Aufenthaltsverbot) had been issued

by the same authority on 31 July 1986, that the applicant's appeals to

the Vorarlberg Directorate of Public Security (Sicherheitsdirektion)

and to the Constitutional Court (Verfassungsgerichtshof) and

Administrative Court (Verwaltungsgerichtshof) had been unsuccessful,

that the applicant had been ordered on 26 June 1987 to leave Austrian

territory within one week, that he had been in Austria unlawfully since

13 June 1987 (seven days after he had received the Administrative

Court's decision) and that his provisional detention was necessary in

order to ensure that he left the country. The applicant was detained

on the same day and deported on 30 October 1987.

The applicant's appeal to the Vorarlberg Directorate of Public

Security was rejected on 19 November 1987 on the ground that, given

that the applicant had not merely remained in the country without a

residence permit, but had stayed notwithstanding a valid residence

prohibition, it was clearly in the interests of public order and

security to remove such an alien. The Constitutional Court, by

decision of 25 February 1988, declined to deal with the applicant's

constitutional complaint on the ground that such a complaint was not

excluded from the competence of the Administrative Court, and that

there were no specific constitutional questions to be answered.

Moreover, the application had no prospect of success.

The applicant's complaint to the Administrative Court was

dismissed on 18 October 1989. The Administrative Court noted that some

of the applicant's complaints were not related to the procedural

matters at issue and continued:

(German)

"Unter dem Gesichtspunkt einer inhaltlichen Rechtswidrigkeit des

angefochtenen Bescheides macht der Beschwerdeführer geltend, es

liege keine der Voraussetzungen des §5 Abs. 1 FrPolG vor, weil

der alleinige Aufenthalt des Beschwerdeführers in Österreich noch

kein unmittelbar zu beführchtendes strafbares Verhalten

darstelle. Der Beschwerdeführer übersieht dabei, daß nach der

Judikatur des Verwaltungsgerichtshofes ein Fremder, der sich

entgegen einem aufrechten Aufenthaltsverbot monatelang unerlaubt

im Bundesgebiet aufhält, sehr wohl ein Verhalten setzt, welches

eine Gefahr für die öffentliche Ruhe, Ordnung und Sicherheit

darstellt, weil damit der Tatbestand nach §14 Abs. 1 FrPolG

verwirklicht wird und dabei von einer Geringfügigkeit des

rechtswidrigen Verhaltens keine Rede sein kann (vgl. dazu die hg.

Erkenntnisse vom 29. März 1989, Zl. 87/01/0249, vom 27. Mai 1987,

Zl. 87/001/0029, und vom 13. Mai 1987, Zl. 86/01/0226).

Da schließlich auch eine Antragstellung nach §8 FrPolG den

im Einzelfall gebotenen Vollzug eines Aufenthaltsverbotes

durch Verhängung der Schubhaft nicht zu hindern vermag,

weil sonst jegliche Zwangsmaßnahme gemaß §5 FrPolG durch

eine Antragstellung gemaß §8 leg. cit. von vornherein

unterlaufen werden könnte,haftet dem angefochtenen Bescheid

auch die behauptete inhaltliche Rechtswidrigkeit nicht an.

Die Beschwerde war daher gemäß § 42 Abs. 1 VwGG als

unbegründet abzuweisen".

(Translation)

"In connection with substantive illegality of the decision

challenged, the complainant alleges that none of the conditions

of Section 5 para. 1 of the Aliens Act is met as the applicant's

mere presence in Austria cannot constitute a direct risk of

criminal conduct. The complainant fails to appreciate that an

alien who remains for months on Austrian territory

notwithstanding a subsisting residence prohibition can indeed be

seen to be behaving in a way which constitutes a danger for

public peace, order and security, as the factual elements for the

offence under Section 14 para. 1 of the Aliens Act are thereby

met, and there can be no question of the "de minimis" character

of the illegal behaviour (cf. decisions of this court of 29 March

1989, No. 87/01/0429, of 27 May 1987, No. 87/01/0009, and of 13

May 1987, No. 86/01/0226).

Finally, as an application under Section 8 of the Aliens Act

cannot remove the necessity in an individual case of enforcing

the residence prohibition (as every measure of compulsion under

Section 5 of the Aliens Act could thereby be undermined by an

application under Section 8), the decision challenged is not

tainted by the alleged substantive illegality. The complaint

must therefore be rejected pursuant to Section 42 para. 1 of the

Administrative Court Act".

COMPLAINTS

The applicant alleges a violation of Article 5 of the Convention.

He considers that the Austrian aliens authorities issue detention

orders far too freely, in circumstances where there is no necessity for

a detention order.

He considers that the one-week period provided for in Section 6

of the Aliens Act in which an alien against whom a residence

prohibition has been made must leave the country was not respected.

He states that the criminal proceedings which were the reason for the

residence prohibition in the first place had been re-opened, so that

he could reasonably expect the residence prohibition to be lifted. The

documents concerning the residence prohibition do not form part of the

present application and have not been submitted.

The applicant submits that compliance with domestic law is not

sufficient to constitute compliance with Article 5 para. 1 (f) of the

Convention, but that domestic law must be particularly clear and the

discretion retained by States must be particularly narrow. He

that Section 5 of the Aliens Act does not comply with these

requirements, nor the requirement of foreseeability.

THE LAW

The applicant alleges a violation of Article 5 para. 1 (Art. 5-1)

of the Convention.

Article 5 para. 1 (Art. 5-1) provides, so far as relevant, as

follows:

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

...

f. the lawful arrest or detention of a person to prevent his

effecting an unauthorised entry into the country or of a person

against whom action is being taken with a view to deportation or

extradition."

The Commission recalls that the lawfulness of detention is a

requirement laid down in Article 5 (Art. 5) of the Convention.

However, the review of the Convention organs is limited to examining

whether there was a legal basis for the detention and whether the

decision to place a person in detention may or may not be described as

arbitrary in light of the facts of the case (cf. Zamir v. the United

Kingdom, Comm. Report 11.10.83, para. 87, D.R. 40 p. 42, 55; Kolompar

v. Belgium,

No. 11613/85, Comm. Report 28.2.91, p. 13, to be published in

Eur. Court H.R., Kolompar judgment of 24 September 1992, Series A

no. 235-C).

The Commission finds that there was a legal basis in Austrian law

for the detention, namely the detention order of 5 October 1987 under

Section 5 of the Aliens Act. The question remains whether,

notwithstanding that legal basis, it can be seen to be arbitrary.

The applicant points to various aspects of the case which, he

alleges in substance, indicate that the detention was arbitrary. In

particular, he considers that the one week period of notice provided

for in Section 6 of the Aliens Act was not respected, and that as the

criminal proceedings which had been at the base of the residence

prohibition had been re-opened, the residence prohibition should in any

event have been lifted.

As to the question of the period of notice to be given under

Section 6 of the Aliens Act, the Commission notes that the provisional

detention order of 5 October 1987 recited that the decision of the

Administrative Court concerning the residence prohibition had been

served on the applicant and his detention became unlawful one week

thereafter, on 13 June 1987, and that on 26 June 1987 the applicant had

been order to leave Austria within one week. As the applicant was

detained on 5 October 1987, it is not clear in what way the period of

one week was not respected.

As to the effect of the re-opening of the criminal proceedings

on the detention order, the Commission notes that the domestic

authorities relied in the proceedings on the residence prohibition and

the applicant's subsequent residence in Austria as the ground for the

detention and deportation. The fact that there may have been some

alteration to the state of the criminal proceedings which preceeded the

residence prohibition (and details of which have not been submitted)

does not affect the legal basis for the detention order, nor can it

make the detention arbitrary.

The Commission finds that there was a legal basis for the

applicant's detention and that the detention was not arbitrary.

Accordingly the detention complied with the provisions of Article 5

para. 1 (f) (Art. 5-1-f) 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) (J.A. FROWEIN)

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KOSE v. AUSTRIA

KOSE v. AUSTRIA

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