Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18203/91

by B.

against Austria

The European Commission of Human Rights sitting in private

on 3 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

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 RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

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 22 March 1991

by B. against Austria and registered on 15 May 1991 under

file No. 18203/91;

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, a Turkish citizen of Kurdish origin, was born

in 1954. He currently lives in Wiener Neustadt in Austria.

On 26 January 1985 the applicant arrived in Austria. His

parents and one of his sons live in Austria. His wife and his other

five children live in Turkey.

On 9 July 1990 the Wiener Neustadt Federal Police Directorate

(Bundespolizeidirektion) fined the applicant AS 5,000 for having

contravened Section 14 para. 1 of the Aliens Act (Fremdenpolizei-

gesetz) by transporting to Innsbruck five Turkish citizens who

stayed illegally in Austria.

According to Section 14 of the Aliens Act a person who

furthers the illegal entry or exit of an alien against payment

may be punished with a fine not exceeding AS 50,000.

On 16 July 1990 the Police Directorate imposed a residence

prohibition until 16 July 2000 on the applicant in view of the above

offence under Section 14 para. 1 of the Aliens Act. The Directorate

considered the residence prohibition to be in the interest of public

peace, order and security.

On 8 October 1990 the Provincial Police Directorate

(Sicherheitsdirektion) of Lower Austria dismissed the applicant's

appeal. Weighing public and private interests at stake, in

particular taking into account the length of his residence and his

integration in Austria, the intensity of family relations and the

prospective handicap to his and his family's living, the Provincial

Police Directorate considered that the residence prohibition was

proportionate in view of the facts that only one of his six children

and his parents live in Austria whereas the rest of his family lives

in Turkey and that he had committed fourteen administrative road

traffic offences during the last five years.

On 28 January 1991 the Administrative Court (Verwaltungs-

gerichtshof) dismissed the applicant's complaint against the

Provincial Police Directorate's decision. It found that the applicant

had cooperated in the illegal entry or exit of aliens against payment.

The order of the residence prohibition was therefore necessary to

achieve the aims laid down in Article 8 para. 2 of the Convention. It

furthermore found that, if a residence prohibition would not be

ordered, the negative consequences for public interests were

disproportionate to the implications of the residence prohibition on

the applicant and his family, given the fact that the applicant's son

in Austria lives with his grandparents and is maintained by his

grandfather.

COMPLAINTS

The applicant complains that the residence prohibition imposed

upon him violated his right to respect for his private and family life

and home under Article 8 of the Convention.

THE LAW

The applicant complains about the residence prohibition of

16 July 1990. He invokes Article 8 (Art. 8) of the Convention which

provides:

"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

freedoms of others."

The Commission recalls that the Convention does not guarantee,

as such, the right to enter, remain or reside in a particular

country. However, where a person is excluded from a country where his

close family resides an issue may arise under Article 8 (Art. 8) of the

Convention (Application No. 10375/83, Dec. 10.12.84, D.R. 40, p. 196

with further references).

The Commission notes that one of the applicant's children

and his parents live in Austria. However, his wife and the other five

children live in Turkey.

The Commission finds that the decision of the Austrian

authorities to order a residence prohibition interfered with the

applicant's right to respect for his family life with regard to his

parents and his son in Austria. It has therefore to examine whether the

interference was justified under Article 8 para. 2 (Art. 8-2) of the

Convention.

The Commission notes that the decisions of the authorities and

the Administrative Court were taken under Section 3 of the Aliens

Act. The interference was therefore in accordance with Austrian

law.

Furthermore, the Commission has to examine whether the

interference was necessary within the meaning of Article 8 para. 2

(Art. 8-2) of the Convention.

The Commission observes that the prevention of disorder or

crime is a legitimate aim. It notes that the residence ban was aimed

at preventing the applicant from committing further offences in

Austria. The Commission further notes that the authorities examined

the applicant's situation. In particular, the authorities took into

consideration the fact that the applicant's wife and five of his six

children live in Turkey, whereas only one of his sons and his parents

live in Austria.

In the circumstances the Commission is satisfied that the

decision to order a residence prohibition was based on due

consideration of the public and private interests involved. The

Commission finds that the interference in the public interest of

preventing the applicant from committing further offences in Austria

was not disproportionate to the negative implications for the

applicant's family life.

The Commission therefore considers that the interference with

the applicant's right to respect for his private and family life was

necessary for the prevention of crime and thus justified under Article

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

It follows that the complaint is manifestly ill-founded within

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

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

B. v. AUSTRIA

B. v. AUSTRIA

LEXI