FIRST SECTION

DECISION

Application no. 20588/02 by Rüstem KINIS against Austria

The European Court of Human Rights ( First Section) , sitting on 24 June 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. Hajiyev , judges , and Mr S. Quesada , Deputy Section Registrar ,

Having regard to the above application lodged on 17 May 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Rüstem Kinis , is a Turkish national, who was born in 1973 and lives in Bludenz . He is represented before the Court by Mr W.L. Weh , a lawyer practising in Bregenz .

The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Winkler, Head of the International Law Department at the Federal Ministry of Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 29 September 1995 the Bludenz District Administrative Authority ( Bezirkshauptmannschaft ) issued provisional penal orders ( Strafverfügungen ) against the applicant for failure to request residence permits for his children, born in 1994 and 1995. Thus, his children were unlawfully staying in Austria.

The applicant, assisted by counsel, filed objections against these orders.

On 12 March 1996 the Bludenz District Administrative Authority issued two penal orders ( Straferkenntnisse ) against the applicant and imposed fines of each ATS 2,000 and two days’ imprisonment in default, under Sections 15 § 1 and 82 § 1 lit. 4 of the 1992 Aliens Act ( Fremdengesetz 1992 ).

On 1 April 1996 the applicant appealed against these decisions.

On 2 December 1996 the Vorarlberg Independent Administrative Panel ( Unabhängiger Verwaltungssenat ) granted the applicant’s appeal in part, reduced one fine to ATS 1,500 and upheld the decisions for the remainder.

On 29 January 1997 the applicant filed a complaint with the Constitutional Court ( Verfassunggerichtshof ) and, at the same time, filed a request for exemption from the court fees of ATS 2,500 (approx. EUR 181). He submitted that the amount of court fees was inappropriately high and therefore impeded access to court.

On 30 September 1997 the Constitutional Court, referring to its previous case-law, declined to deal with the complaint for lack of prospects of success and also rejected the claim for legal aid. The court transferred the complaint to the Administrative Court ( Verwaltungsgerichtshof ) for the further examination.

On 12 March 1998 the applicant supplemented his complaint.

On 16 September 1998 the Independent Administrative Panel submitted observations in reply, which arrived at the Administrative Court on 21 September 1998.

On 12 June 2001 the Constitutional Court quashed the decisions of the Vorarlberg Public Security Authority ( Sicherheitsdirektion ) of 22 January 2001, ordering the applicant’s wife and his children to leave Austria, on the ground that the authority had not balanced the involved interests under Article 8 of the Convention.

On 8 November 2001 the Administrative Court refused to deal with the applicant’s complaint pursuant to Section 33a of the Administrative Court Act since the amount of the penalties did not exceed ATS 10,000 and no important legal problem was at stake. This decision was served on the applicant’s counsel on 19 November 2001.

COMPLAINTS

The applicant complained under Article 6 of the Convention about the length of the administrative criminal proceedings.

He also complained under Article 6 that the court fees before the Constitutional Court and the Administrative Court deprived him of effective access to court.

He further complained under Article 8 of the Convention that the decisions of the Administrative Court of 8 November 2001 were in breach of his right to respect for his family life as they arbitrarily disregarded the decision of the Constitutional Court of 12 June 2001, which had quashed the orders against the applicant’s wife and children to leave Austria. In this connection he also relied on Articles 6 and 14 of the Convention.

THE LAW

On 25 May 2004 the Court received the following declaration from the Government:

“I declare that the Government of Austria offer to pay the amount of EUR 7,000 to Rüstem Kinis in respect of the above application an ex gratia basis for the withdrawal of its application pending before the Court. This sum (EUR 7,000) shall cover any pecuniary and non-pecuniary damage as well as costs and expenses. It will be paid, free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

On 26 May 2004 the Court received the following declaration from the applicant:

“I note that the Austrian Government offer to pay the applicant the amount of EUR 7,000 on an ex gratia basis in respect of the above application pending before the Court. This sum (EUR 7,000) shall cover any pecuniary and non-pecuniary damage as well as costs and expenses. It will be paid, free of any taxes that may be applicable, within three months from the notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the offer and withdraw the application waiving any further claims against Austria in respect of the application. I declare that this constitutes a final settlement of the case.”

The Court reiterates the terms of Article 37 § 1 of the Convention which, so far as relevant, reads as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application;

(b) the matter has been resolved;..

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court takes note of the friendly settlement reached between the parties and considers that the applicant no longer intends to pursue his application and that the matter has been resolved. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued. Accordingly, the application to the case of Article 29 § 3 of the Convention should be discontinued and the case struck out of the list.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and to strike the application out of its list of cases.

Santiago Quesada Christos Rozakis                Deputy Registrar President