AS TO THE ADMISSIBILITY OF

                      Application No. 12771/87

                      by Yusuf KARLIDAG

                      against Austria

        The European Commission of Human Rights sitting in private

on 7 October 1987 the following members being present:

              MM. C.A. NØRGAARD, President

                  S. TRECHSEL

                  F. ERMACORA

                  M.A. TRIANTAFYLLIDES

                  E. BUSUTTIL

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             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 27 January 1987

by Yusuf Karlidag against Austria and registered on 9 March 1987 under

file N° 12771/87;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

&_THE FACTS&S

        The applicant is a Turkish citizen of Kurdish origin,

born in 1947 and at present domiciled in Turkey.  He is represented by

Mr.  Gottfried Waibel, a lawyer practising in Bregenz, Austria.

        The applicant and his family had lived several years in

Austria when, on 11 November 1982, the District Authority (Bezirks-

hauptmannschaft) of Bregenz issued a permanent residence prohibition

(unbefristetes Aufenthaltsverbot) against him under Section 3 para. 1

in conjunction with Section 4 of the Immigration Control Act

(Fremdenpolizeigesetz BGBl. 75/1954).  The reason stated was that he

had organised the illegal crossing of the Austrian-German border by

other persons ("im Bereich der deutsch-österreichischen Grenze als

Schlepper betätigt") and that he had been convicted of an offence

against the German Aliens' Act (Ausländergesetz) on that account by

a German court and had been expelled (abgeschoben) by the German

authorities to Turkey.  The Austrian residence prohibition was

confirmed by the Vorarlberg Regional Directorate of Police

(Sicherheitsdirektion) on 13 December 1982.  As the applicant

apparently did not appeal further to the Administrative Court

(Verwaltungsgerichtshof) or the Constitutional Court (Verfassungs-

gerichtshof), this residence prohibition has become final.

        However, the applicant's family (his wife and three children)

continued to live in Bregenz.  On 8 April 1986 the applicant therefore

applied to revoke the residence prohibition under Section 8 of the

Immigration Control Act (termination of the reasons which underlie the

residence prohibition), or, in the alternative, under Section 68 of

the Code of General Administrative Procedure (Allgemeines Verwaltungs-

verfahrensgesetz), which stipulates a general power of the authorities

to revoke administrative decisions which have not created a right for

anybody.  He observed that his German sentence had, in the meantime,

been waived (erlassen) under Section 56 g of the German Criminal Code

(Strafgesetzbuch).  He further observed that Section 3 of the

Immigration Control Act had been quashed by the Constitutional Court

as being unconstitutional for failure to deal with sufficient

precision with the question of respect for family life (decision

G 225/85 of 12 December 1985).

        By letter of 22 April 1986 the District Authority of Bregenz

informed the applicant that it refused the revocation of the residence

prohibition as the grounds which had led to its imposition continued

to exist.  The waiver of the German sentence did not remove that

sentence.  The applicant's private and personal circumstances which he

had invoked did not justify the revocation of the residence prohibition.

The authority added that the applicant would be granted leave to enter

the Austrian territory for a period of three weeks in 1987 in order to

visit his family (Section 6 para. 1 of the Immigration Control Act).

        The applicant challenged this decision by a complaint to the

Administrative Court.  The Court rejected the complaint by a decision

of 11 June 1986 which was served on the applicant on 22 August 1986.

It held that the District Authority's letter was to be considered as

an administrative decision.  However, this decision had been based on

the correct legal opinion that the reasons justifying the residence

prohibition continued to exist and that Section 8 of the Immigration

Control Act was therefore not applicable.  The waiver of the German

sentence left the conviction and other consequences of the judgment

unaffected and it did not amount to an erasion of the conviction in

the criminal record (Tilgung).  The fact that the Constitutional Court

had quashed Section 3 of the Immigration Control Act with effect from

30 November 1986 was irrelevant in the context of the present case.

        From further correspondence with the District Authority and

the Federal Ministry of the Interior, it appears that the applicant

had travelled to Austria to visit his family.  He asked for an

extension of his leave of entry beyond the three-week period granted

for this purpose and referred to the possibility of political

persecution in Turkey if he and his family returned there, because of

their Kurdish origin.  It further appears from this correspondence

that the applicant had applied for political asylum in Austria for

this reason.

&_COMPLAINT&S

        The applicant complains that the refusal to revoke the

permanent residence prohibition amounted to an unjustified

interference with his right to respect for his family life (Article 8

of the Convention).  He claims that his family life is firmly

established in Austria as his family have lived there for more than

ten years and his three children visit Austrian schools.  He further

observes that, in the circumstances, his family cannot be expected to

return to Turkey.

        The applicant refers to the Constitutional Court's decision of

12 December 1985 by which Section 3 of the Immigration Control Act was

found to be unconstitutional for failure to take the respect of family

life sufficiently into consideration.  However, the quashing of this

provision took effect only on 30 November 1986, and therefore the

provision in question, which was the basis of the measure taken

against the applicant, continued to be applicable in his case despite

the fact that it was in conflict with the requirements of Article 8 of

the Convention.  In these circumstances the applicant had no possibility,

according to the case-law of the Constitutional Court (decisions Nos.

4718/64, 531/66, 8483/79), to challenge the constitutionality of

Section 3 of the Immigration Control Act.  The applicant therefore

considers that he was not required to complain to the Constitutional

Court.  He further claims that Section 8 of the Act, directly applied

in this case, also fails to take the family situation sufficiently

into account and thus, too, violates Article 8 of the Convention.

&_THE LAW&S

        The applicant complains that the Austrian authorities' refusal

to revoke a residence prohibition issued against him interferes with

his right to respect for his family life as guaranteed by Article 8 (Art. 8) of

the Convention.

        The Commission notes that the applicant's family, i.e. his

wife and three children who are not yet of age, have been lawfully

residing in Austria for more than ten years.  Despite the residence

prohibition issued against the applicant, it appears that he has been

granted leave to enter Austrian territory for short periods for the

purpose of visiting his family.  In these circumstances it can be

assumed that the applicant's family life is indeed established in

Austria.

        The Commission further notes that the specific measure

complained of is the refusal to revoke a permanent residence prohibition

which was ordered in 1982.  Although the applicant can no longer

complain of the original order, the Commission considers that he

is entitled to complain that the refusal interfered with his rights

under Article 8 para. 1 (Art. 8-1) of the Convention.  A permanent residence

prohibition may become disproportionate with the lapse of time and in

the present case the applicant invokes a change of circumstances

which, in his view, justified his request for a revocation under

Article 8 (Art. 8) of the Convention.

        However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a violation

of this provision as, under Article 26 (Art. 26) of the Convention, it may only

deal with a matter after all domestic remedies have been exhausted according to

the generally recognised rules of international law.

        In the present case the applicant failed to bring his

complaint before the Constitutional Court and has, therefore, not

exhausted the remedies available to him under Austrian law.  An

examination of the case does not disclose the existence of any special

circumstances which might have absolved the applicant, according to

the generally recognised rules of international law, from exhausting

the domestic remedies at his disposal.

        It is true that the applicant claims that he could not

challenge the constitutionality of Section 3 of the Immigration

Control Act, as applied in his case, with regard to Article 8 (Art. 8) of the

Convention.  In its decision of 12 December 1985 the Constitutional

Court had already examined this question and had, with effect from

30 November 1986, annulled Section 3 as lacking sufficient precision

with regard to the authorities' obligation to observe the requirements of

Article 8 (Art. 8) of the Convention, thus implying that until that date the

provision in question must be regarded as being in conformity with

constitutional law.  However, it was not Section 3 but Section 8 of the Act

which was applied in the present case.  The above decision of 12 December 1985

did not in any way prevent the applicant from claiming before the

Constitutional Court that Section 8, too, might raise problems as to its

conformity with Article 8 (Art. 8) of the Convention. He could even have

invoked that decision in support of his argument.

        Moreover, it is not primarily the constitutionality of the

applicable provisions of the Immigration Control Act which is at issue

here, but their application in the concrete case.  In a complaint

under Article 144 of the Federal Constitution the applicant could have

challenged the particular refusal to revoke the residence prohibition

and could have claimed that Section 8, or indirectly Section 3, of the

Act had been applied in his case in such a way as to violate his

rights under Article 8 (Art. 8) of the Convention.  In this respect he could

have invoked the Constitutional Court's earlier case-law which

preceded the decision of 12 December 1985 and in which it had been

held that the Immigration Control Act must be interpreted in

conformity with Article 8 (Art. 8) of the Convention.  The applicant could

have claimed that such an interpretation, prompted by Austrian

constitutional law, had not been adhered to in his case.

        It follows that a complaint to the Constitutional Court cannot

be regarded as an ineffective remedy in the circumstances of the

applicant's case.

        Accordingly the applicant has not complied with the condition

as to the exhaustion of domestic remedies laid down in Article 26 (Art. 26) and

his application must in this respect be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

        For these reasons, the Commission

        &_DECLARES THE APPLICATION INADMISSIBLE.&S

Secretary to the Commission               President of the Commission

   (H.C. KRÜGER)                               (C.A. NØRGAARD)