The European Commission of Human Rights sitting in private on

13 March 1986, the following members being present:

                MM C.A. NØRGAARD, President

                   G. SPERDUTI

                   J.A. FROWEIN

                   E. BUSUTTIL

                   G. JÖRUNDSSON

                   G. TENEKIDES

                   S. TRECHSEL

                   B. KIERNAN

                   A.S. GÖZÜBÜYÜK

                   A. WEITZEL

                   J.C. SOYER

                   H.G. SCHERMERS

                   G. BATLINER

                   J. CAMPINOS

                   H. VANDENBERGHE

               Mrs G.H. THUNE

               Sir Basil HALL

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

Having regard to Art. 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 December 1982 by

H.I. against Austria and registered on 3 December 1982 under

file No. 10215/82;

Having regard to:

-       the Commission's decision of 14 July 1983 to bring the

application to the notice of the respondent Government and invite them

to submit written observations on its admissibility;

-       the observations submitted by the respondent Government on

18 October 1983 and the observations in reply submitted by the applicant

on 13 January 1984;

-       the Commission's decision of 9 July 1984 to invite the parties

to an oral hearing on the admissibility and merits of the application;

-       the Commission's decision of 12 October 1984 to postpone the

hearing in the light of the parties' information that they were

engaged in negotiations with a view to reaching an agreed solution of

the case;

-       the information submitted by both parties on 10 December 1985

that a solution had been agreed upon;

-       the applicant's declaration of 13 February 1986 that in the

light of the above agreed solution he wishes to withdraw the

application;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen born in 1946 who is actually living

at Höchst, Vorarlberg.  He is represented by Mr. W.L. Weh, a lawyer

practising in Bregenz.

The applicant has been living in Austria since 1971.  His wife joined

him in 1974 and two children born in 1978 and 1981 respectively also

live with him in Austria.  His five elder children have remained in

Turkey.

In April 1980, the District Authority of Bregenz issued a temporary

residence prohibition against the applicant until 31 December 1985.

It was based on Section 3 (1) of the Immigration Control Act

(Fremdenpolizeigesetz BGBl.75/1954) which provides that a residence

prohibition may be issued upon an alien whose presence in the federal

territory endangers the public peace, order or security or is

otherwise contrary to the public interest.  The reason for the measure

in this particular case were repeated road traffic offences, the last

one involving a withdrawal of the applicant's driving licence for

18 months.

The applicant's appeal was rejected by the Regional Directorate of

Police (Sicherheitsdirektion) in August 1980.  It confirmed that

repeated administrative offences against road traffic regulations,

although not included in the list of specific cases justifying a

residence prohibition under Section 3 (2) of the Immigration Control

Act, nevertheless could provide a basis for such a measure under the

general clause contained in Section 3 (1).  Despite the withdrawal of

his driving licence, the applicant was considered as constituting a

potential danger for the public peace, order and security.  In the

authority's opinion, considerations relating to the applicant's

personal circumstances did not outweigh the public interest in his

removal from the Austrian territory.

The applicant then filed a constitutional appeal in which he invoked

in particular Art. 8 (Art. 8) of the Convention, alleging that the

Immigration Control Act violated this provision because it did not

limit the authorities' power to issue a residence prohibition against

a person by any considerations based on his family situation.  He

claimed that he had an established family life in Austria, and that

the residence prohibition which interfered with this family life was

disproportionate in the circumstances in particular because the public

interest was already protected by the withdrawal of his driving

licence which moreover had been ordered for a shorter period than the

residence prohibition.

The Constitutional Court rejected this complaint by a decision of 28

February 1981.  It confirmed an earlier decision (B343/79, official

collection of decisions No. 8792) where it had expressed the opinion

that Section 3 of the Immigration Control Act was in principle capable

of being applied in conformity with Art. 8 (Art. 8) of the Convention.

The family situation of the person concerned had to be taken into

account and had to be weighed against the public interest in his

removal from the federal territory.  The applicant's further

complaints were rejected on the grounds that the constitutional law

did not provide any guarantee against expulsion measures concerning an

individual alien, and that the principle of equality before the law

which, inter alia, forbids an arbitrary or unreasonable application

of the law, could not be invoked by an alien because it was only

guaranteed to Austrian citizens.

In accordance with the applicant's request, the Constitutional Court

referred the case to the Administrative Court with a view to

establishing whether any provisions of ordinary law had been

infringed.  The applicant submitted supplementary observations to the

Administrative Court pointing out in particular that the authority had

omitted to take evidence on his personal and family situation and had

failed to give complete reasons for its decision.  The administrative

offence which had given rise to the residence prohibition had been

given an exaggerated weight in comparison to the cases explicitly

stated in Section 3 (2) of the Immigration Control Act.

The Administrative Court rejected the complaint by a decision of

29 September 1982.  It considered that the road traffic offences of

which the applicant had been found guilty and which he had not denied

were by no means insignificant and were therefore capable of

justifying a residence prohibition under Section 3 (1) of the

Immigration Control Act.  The authority's assumption that the

applicant might also in future endanger the road traffic despite the

withdrawal of his driving licence and the sale of his car was based on

sufficient grounds and did not violate the law.  The argument that the

authority had failed to investigate the applicant's personal and

family situation was without object because these circumstances could

only be relevant for a decision under Section 6 (2) of the Immigration

Control Act (enforcement of a prohibition order) but not for the

question of ordering a residence prohibition as such.  Insofar as the

applicant had invoked Arts. 8 and 14 (Art. 8, art. 14) of the

Convention, the Administrative Court referred to the Constitutional

Court's above decision according to which no violation of the

applicant's constitutional rights under these provisions had been

established. Apart from that it observed that the measure complained

of was a restriction of the applicant's rights under Art. 8, para. 1

(Art. 8-1) which was provided for by law as required by Art. 8,

para. 2 (Art. 8-2) and which in the concrete case was necessary to

protect the public order and security as appeared from the reasons

given which corresponded to the factual and legal situation.

No further remedy was available against this decision.

In connection with the above proceedings, the applicant encountered a

number of difficulties to remain in the Austrian territory pending the

final decision.  His work permit and visa expired on 20 July 1980 and

only a short prolongation of the visa was granted at his request by

the District Authority of Bregenz.  The work permit was extended until

31 December 1981.

Following the rejection of his appeal by the Vorarlberg Directorate of

Police on 22 August 1980, the applicant was arrested on 23 September

1980.  He was told that he would be detained with a view to his

expulsion to Turkey.  Due to intervention of the Federal Ministry of

the Interior he was however released on the following day and a

suspension of the execution of the order was granted to him.

The applicant subsequently complained of his detention to the

Constitutional Court which found by a decision of 26 February 1982

that it had in fact been unconstitutional because it had not been

ordered by a prior administrative decision.

On 16 October 1980, the District Authority allowed a request of the

applicant to suspend the execution of the residence prohibition.  The

suspension was subject to revocation at any time and limited until

31 March 1981.

On 31 March 1981, the applicant requested a prolongation of the

suspension order until the hearing of his case by the Administrative

Court or until 30 June 1981.  He referred in particular to the fact

that his wife had given birth to a child in February.  The request was

first refused by a decision of 28 April 1981, but this decision was

revoked on 4 May 1981 on the ground that the applicant had not been

heard on the result of his wife's medical examination. After having

received the applicant's submissions on this issue, the District

Authority again refused the application by a decision of 24 June 1981.

By decision of the same date it ordered the applicant's detention in

view of his expulsion to Turkey and the applicant was immediately

arrested and deported to Turkey.

However, on the very same day, the 24 June 1981, the Administrative

Court allowed an application for suspensive effect which the applicant

had in the meantime made in connection with the proceedings before

this court.  It noted that the public interest in the immediate

execution of the residence prohibition against the applicant was in

substance based on the mere possibility that he might commit further

road traffic offences, an assumption which was not supported by any

concrete evidence.  In the given circumstances the public interest did

not outweigh the important private interests of the applicant such as

the loss of his job, the possible rupture of his family ties, and the

inavailability of adequate housing in Turkey.

Following this decision of the Administrative Court, the applicant

applied for permission to re-enter the Austrian territory. This was

granted by a decision of the Bregenz District Authority of

13 August 1981.  The authorisation to stay on Austrian territory was

limited until the Administrative Court's decision on the merits.  A

new work permit was refused to him.

After the negative decision of the Administrative Court, the applicant

was ordered to leave Austria by 28 December 1982.  He could then

obtain a further suspension of the execution of the residence

prohibition in view of the present proceedings before the Commission.

The applicant thus could in fact remain in Austria and subsequently

was also granted a new work permit.

COMPLAINTS

The applicant complained of violations of his rights under Arts. 6, 8,

13 and 14 (Art. 6, art. 8, art. 13, art. 14) of the Convention.

1.      As regards Art. 6 (Art. 6), he invoked the Commission's

decision on the admissibility of Application No. 2991/66, Alam and

Khan v. the United Kingdom where the Commission recognised that the

right to entertain family contacts might come within the concept of a

civil right.  He further observed that the residence prohibition

interfered with his employment contract and, as a consequence of the

loss of his working income, with his maintenance obligations vis-à-vis

his family.

He considered Art. 6, para. 1 (Art. 6-1) had been breached by the

absence of full judicial control by an independent tribunal and by the

fact that throughout the proceedings he was never heard orally and in

person about his personal and family situation.

2.      As regards Art. 8 (Art. 8), the applicant submitted that his

family life was established in Austria where he lived with his wife

and a child and where a further child was born to him in February

1981.  The Constitutional Court has recognised that in similar

circumstances a residence prohibition must be considered as

constituting an interference with family life and must thus be

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

He submitted that in the present case the restriction was neither

"prescribed by law" nor "necessary in a democratic society". The

lawfulness of the residence prohibition was challeged because of the

authorities allegedly circumvented the more stringent requirement of

Section 3 (2)(b) of the Immigration Control Act by basing it on the

general clause in Section 3 (1) of that Act.

As regards the necessity of this measure, the applicant submitted that

it was not in line with the minimum response principle. Under the road

traffic regulations, the authority had apparently considered that he

would again be fit for driving after 18 months - otherwise it would

have been obliged to withdraw his licence for an indefinite period.

In these circumstances it was illogical to base a residence

prohibition for a considerably longer period (almost six years)

exclusively on the assumption of his being unfit for driving. The

disproportionality of the measure had in fact been recognised by the

Administrative Court in its decision on the suspensive effect.  In the

main decision, however, his family situation was not at all taken into

account although it should have been weighed against the public

interest.

3.      The applicant alleged a breach of Art. 13 (Art. 13)

of the Convention because the courts of public law in effect failed to

review the case under Art. 8 (Art. 8) of the Convention; the

Constitutional Court did not examine whether the measure was justified

under Art. 8, para. 2 (Art. 8-2) in the particular case, and the

Administrative Court expressly refused to apply Art. 8 (Art. 8) to the

issue of the residence prohibition as such.

4.      As regards Art. 14 (Art. 14) of the Convention, the applicant

did not submit any detailed arguments.  He only observed that the

constitu- tional principle of equality before the law as understood in

the Austrian legal system is not applicable to aliens who thus are not

protected against unreasonable or arbitrary application of the

Immigration Control Act.  This has been expressly confirmed by the

Constitutional Court in the present case.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 1 December 1982 and registered on

3 December 1982.  The applicant's wife and his two children living with

him in Austria subsequently also introduced an application based on

the same facts and containing similar complaints (Application No.

10266/83), which the Commission examined jointly with the present

application.  However, this application was eventually rejected by a

decision of 9 July 1984.

The Commission first examined the application on 10 March 1983 when it

decided to ask the applicant for further information on his family

situation.  This information was submitted on 14 April 1983.

On 14 July 1983, the Commission resumed its examination and decided to

give notice of the application to the respondent Government and to

invite that Government, in accordance with Rule 42 (2)(b) of the Rules

of Procedure, to submit observations in writing on the admissibility

and merits of the application.  The parties were invited to deal in

particular with the following questions:

1.      Can the interference with the applicant's private and family

life brought about by the issue of a residence prohibition against him

be justified under Art. 8, para. 2 (Art. 8-2) of the Convention?

2.      Having regard to the combined effect of the Constitutional and

the Administrative Courts' decisions in the applicant's case, did the

proceedings before these courts constitute effective remedies in the

sense of Art. 13 (Art. 13) of the Convention to ensure that the residence

prohibition issued against the applicant was in fact in conformity

with the requirements of Art. 8 (Art. 8) of the Convention?

3.      Having regard to the inapplicability of the principle of

equality before the law to foreign nationals as found by the

Constitutional Court in the applicant's case, is there a

discrimination as between Austrian and foreign nationals as to the

protection of their right to respect for their family life, in

particular against arbitrary measures or measures based on an

unreasonable interpretation of the law (Art. 14 (Art. 14)

combined with Arts. 8 and 13 (Art. 8, art. 13) of the Convention)?

The Government's observations were submitted within the time-limit

fixed for that purpose, on 18 October 1983.  The applicant was invited

to reply before 8 December 1983, but this time-limit was subsequently

extended, at his request, until 15 January 1984.  The observations

were in fact submitted on 13 January and supplemented on 2 April 1984.

Without the case having returned before the Commission, the Government

submitted additional observations on 24 April 1984 and the applicant

commented thereon on 23 May 1984.

The applicant had already previously applied for legal aid, and this

was granted by the Commission on 16 December 1983.

On 14 July 1984, the Commission decided in accordance with Rule 42

(3)(b) of the Rules of Procedure, to invite the parties to submit

further observations orally at a hearing on the admissibility and

merits of the application.  The hearing was scheduled to take place on

7 March 1985.

However, by a letter received on 4 February 1985, the applicant's

lawyer informed the Commission that the respondent Government had

contacted him with a view to reaching an agreed solution, and he would

not exclude that such a solution might in fact materialise.

On 22 February 1985, the respondent Government requested the

Commission to postpone the hearing as there were good prospects of

reaching an agreed solution with the applicant.  In the light of these

developments, the Commission's President ruled on 25 February 1985 to

cancel the hearing on 7 March 1985.

The Commission considered the state of procedure on 12 October 1985.

It noted that the negotiations between the parties were still

continuing and therefore it decided to adjourn the further

consideration of admissibility.

On 10 December 1985, the Government informed the Commission that a

solution had been agreed with the applicant on the following basis:

1.      A lump-sum of AS 240,000.-  will be paid to the applicant as

compensation for all fees for the procedures and for all other

financial claims.

2.      The Federal Ministry of the Interior has instructed all its

authorities handling matters concerning foreigners (Fremdenpolizei)

in Austria to take particularly into account the family situation when

taking measures affecting such persons.

3.      The banishment from Austrian territory (Aufenthaltsverbot) is

formally withdrawn.  Likewise unrestricted visa will be granted to the

applicant and his family.

4.      The Federal Ministry for Foreign Affairs will use its

influence on the Federal Ministry for Social Affairs in order to

assure that the applicant will not suffer in his future career from

any damages resulting from the temporary interruption of his

employment.

The applicant's attorney, in turn, stated that he will not make any

further claims and will withdraw his application which he filed with

the Commission.

The applicant informed the Commission by a letter of the same date

(10 December 1985) that this agreement still required the approval of

the Federal Ministry of Finance, and that he would withdraw the

application as soon as this approval had been given.

By a further letter of 13 February 1986 the applicant informed the

Commission that most parts of the agreement had already been

fulfilled.  The necessity to consider the family situation of a

foreign national subject to a residence prohibition had not only been

emphasised in a circular instruction of the Federal Ministry of

Interior of 14 November 1985 (GZ 79030/10-II/14/85), it now would even

be regulated by specific legislative provisions.  In fact, by a

decision of 12 December 1985 the Constitutional Court had quashed

Section 3 of the Immigration Control Act, on the ground of lacking

precision, because it failed to provide for the consideration of the

family situation of a person struck by a residence prohibition.

Therefore, not only the applicant's claims had been satisfied, but

respect for Art. 8 (Art. 8) had been ensured on a general basis.

The applicant considered that in these circumstances the general

interest did not require the continuation of the proceedings, and

therefore he declared himself willing to withdraw the application.

REASONS FOR THE DECISION

The Commission finds that an agreed solution has been reached between

the parties which not only includes individual measures satisfying the

applicant's claims, but also a general instruction to the authorities

concerned intended to bring the practice of these authorities in

conformity with the requirements of Art. 8 (Art. 8) of the Convention.

The Commission finds that in these circumstances there are no reasons

of a general character affecting the observance of the Convention

which require further examination of the application. Accordingly the

Commission accedes to the applicant's request to withdraw his case.

For these reasons, the Commission:

DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES

Secretary to the Commission               President of the Commission

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