THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46548/99 by Veselin MARINKOVIC against Austria

The European Court of Human Rights (Third Section) , sitting on 23 October 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr P. KÅ«ris , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application lodged on 27 January 1999 and registered on 5 March 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Veselin Marinkovic, is a national of the Federal Republic of Yugoslavia, who was born in 1970 and currently lives in Lustenau. He is represented before the Court by Mr. W. Weh, a lawyer practising in Bregenz.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows:

The applicant has been living in Austria since 1986. His wife followed him in 1988 and their three children were born there.

On 2 February 1995 the Bregenz District Authority ( Bezirkshauptmannschaft ) imposed a ten year residence ban on the applicant pursuant to section 18 of the 1992 Aliens Act ( Fremdengesetz ). It referred to the applicant’s conviction on charges of burglary and coercion, for which he had been sentenced to eight months’ imprisonment. Further, it had regard to thirteen convictions in relation to administrative offences for which he had been fined. It found that although the issue of a residence ban constituted an interference with the applicant’s private and family life, the public interest outweighed the applicant’s personal interests in remaining in Austria.

On 2 August 1995 the Vorarlberg Federal Security Authority ( Sicherheitsdirektion ) confirmed the decision, but reduced the duration of the residence ban to five years.

Subsequently, the applicant lodged a complaint with the Administrative Court ( Verwaltungsgerichtshof ).

On 5 October 1995 the Administrative Court granted the applicant’s request for suspensive effect.

On 1 January 1998 the Aliens Act 1997 entered into force (“the 1997 Act”).

On 23 June 1998 the Administrative Court declared the applicant’s complaint to be devoid of purpose and discontinued the proceedings.

It noted in the first place that, pursuant to the 1997 Act, the conditions for issuing a residence ban differed from those set out in the Aliens Act 1992 (“the 1992 Act”). In the present case, the requirements of section 114 (4) of the 1997 Act to discontinue proceedings were fulfilled for the following reasons: Unlike section 18 of the 1992 Act, under which the authority had to issue a residence ban if the conditions were met, section 36 of the 1997 Act left a certain degree of discretion to the authority. In the proceedings conducted so far, the applicant had not had the opportunity to submit facts, which - having regard to the authority’s discretion - could militate against the issue of a residence ban. Moreover, the residence ban against the applicant was not one which could obviously be based on the provisions of the 1997 Act. This was why the applicant’s complaint had become devoid of purpose and the proceedings had to be discontinued. Referring to section 115 of the 1997 Act, the Administrative Court found that the applicant had to bear his own costs. The Administrative Court’s decision was served on the applicant on 27 July 1998.

As a consequence of the Administrative Court’s decision, the residence ban proceedings were remitted to the first instance authority.

On 5 October 1998 the Dornbirn District Authority again imposed a ten year residence ban on the applicant pursuant to section 36 of the 1997 Act. It had regard to the fact that, in addition to the conviction already relied on in the residence ban of 2 February 1995, the applicant had also been convicted of negligently causing bodily harm, of intentionally causing bodily harm and of poaching and, in each case, had been sentenced to a fine. Moreover, his convictions for administrative offences had in the meantime increased to a total of forty-five. The applicant had, thus, shown a continuous disrespect for the Austrian legal order. Although the issue of a residence ban constituted an interference with the applicant’s private and family life, it was necessary for the prevention of disorder and crime.

The applicant’s appeal and his further complaint to the Administrative Court remained unsuccessful.

B. Relevant domestic law

1. The Aliens Act 1997

Section 114 of the 1997 Act contains transitional provisions relating inter alia to residence bans. So far as relevant it reads as follows:

“(4) A residence ban, which is being challenged in proceedings before the Administrative Court or the Constitutional Court, ceases to be effective on the date of entry into force of this Act, unless it obviously has a basis in the provisions of this Act.   ...

(7) In cases falling under paragraph 4 ... the complaint [to the Administrative Court or the Constitutional Court] has to be declared devoid of purpose and the proceedings are to be discontinued without hearing the applicant. ...”

The Administrative Court has to decide in each of such pending cases whether the conditions for discontinuing the proceedings are met. Following a decision discontinuing the proceedings pursuant to section 114 (4) and (7), the residence ban proceedings are remitted to the first instance authority.

Section 115, so far as material, provides as follows:

“(1) ... section 114 (4) .. applies to proceedings which are pending at the time of the entry into force of this Act and are ... not to be rejected as being inadmissible. The parties to these proceedings have to bear their own costs.”

2. The Administrative Court Act

Section 47 (1) of the Administrative Court Act provides that the prevailing party may claim the reimbursement of their costs from the unsuccessful party.

COMPLAINTS

The applicant complains about the enactment of the Aliens Act 1997, and in particular the application of its section 114 to his case by the Administrative Court which required the latter to discontinue the proceedings. As a result of the ensuing remittal of the case to the first instance authority, the proceedings were unduly delayed, causing him psychological strain and disrupting his private and family life. Finally, he complains that, pursuant to section 115 of the 1997 Act, the Administrative Court did not reimburse his legal expenses. He contends that this provision is discriminatory, as costs have to be awarded when the Administrative Court gives a decision on the merits in favour of the complainant. The applicant states explicitly that his complaint is not directed against the residence ban in itself.

The applicant invokes Articles 6, 8 and 13 of the Convention, as well as Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.

THE LAW

1. The applicant complains about the enactment of Section 114 of the Aliens Act 1997 and its application to his case by the Administrative Court. He invokes Article 6 of the Convention, which reads insofar as relevant as follows:

“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court notes that the applicant’s complaints about the length of the proceedings and an alleged interference by the legislature in a pending judicial process may raise issues under Article 6 § 1 of the Convention in certain civil proceedings (see Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994, Series A no. 301-B).

However, the present proceedings concern the issue of a residence ban against the applicant. In this context the Court recalls that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention (see Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X).

Accordingly, this part of the application does not fall within the scope of Article 6 § 1 of the Convention and must therefore be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.

2. The applicant also relies on Article 8 of the Convention which, insofar as relevant reads as follows:

“1. Everyone has the right to respect for his private and family life, ...”

2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society ... for the prevention of disorder and crime ... .”

The applicant may be understood to complain that the enactment of the 1997 Act unduly interfered with his right to respect for his private and family life and, in particular, that the application of section 114 of that legislation led to a delay in the proceedings against him, causing him psychological strain. The Court observes that the applicant does not complain about the residence ban in itself.

The Court recalls that in cases arising from individual petitions the Court’s task is not to review the relevant legislation or practice in abstracto , but to determine whether the manner in which they were applied to or affected the applicant gave rise to a violation of a right guaranteed by the Convention (see for instance the Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, § 24).

In this respect, the Court observes that the application of section 114 of the 1997 Act to the applicant’s case terminated the effects of the residence ban imposed on him under the 1992 Act and that the matter was remitted to the first instance authority for a new examination. The Administrative Court pointed out that the applicant had not had the chance to claim the benefit of the discretion vested in the authorities by the 1997 Act. He was therefore to be given the possibility to submit further facts which could militate against the issue of a residence ban under the new legislation.

In these circumstances, the Court finds that the application of section 114 of the 1997 Act was only to the applicant’s advantage and does not disclose a lack of respect for his private and family life.

It follows that this part of the complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicant further complains that, pursuant to section 115 of the 1997 Aliens Act which he considers to be discriminatory, the legal expenses which he incurred in the proceedings before the Administrative Court were not reimbursed. He invokes Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.

Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

Article 14 reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court recalls that Article 1 of Protocol No. 1 aims at securing the peaceful enjoyment of existing possessions. Future income only constitutes a "possession" if it has been earned or where an enforceable claim exists (see Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 23 § 50; van der Mussele v. Belgium judgment 23 November 1983, Series A no. 70, p. 23), or where the applicant may argue that he has at least a “legitimate expectation” of obtaining the effective enjoyment of a property right (see the Pine Valley Developments Ltd. and Others v. Ireland judgment of 29 November 1991, Series A no. 222, p. 23, § 51).

The Court notes that pursuant to section 47 (1) of the Administrative Court Act a successful party may claim reimbursement of their costs from the unsuccessful party. This presupposes that the proceedings have been terminated. Thus, by the time the Aliens Act 1997 entered into force on 1 January 1998, the applicant did not have a claim at that stage to the reimbursement of his costs, let alone an enforceable one, as the proceedings were still pending (see mutatis mutandis nos. 37416/97, 37418/97, 37434/97, Kappa Kanzlei und BürobetriebsGmbH and Others v. Austria, decision 27.5.98, unpublished). Whether or not the applicant’s complaint would have been successful had the proceedings continued and had the Administrative Court decided on the merits of the case, is a matter of speculation. Nor can it be said that the applicant had a legitimate expectation to the reimbursement of his costs at that time. It follows that the applicant’s complaint falls outside the scope of Article 1 of Protocol No. 1.

As to Article 14 of the Convention, the Court recalls that it complements the other substantive provisions of the Convention and Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded therein. Although the application of Article 14 does not presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see Marckx v. Belgium judgment, ibid .; Karlheinz Schmidt v. Germany judgment of 18 July 1994, p. 32, § 22).

It follows, as the Court has found that Article 1 of Protocol No. 1 is inapplicable in the present case, that no issue under Article 14 of the Convention arises either.

Accordingly, this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.

4. Lastly, the applicant invokes Article 13 of the Convention, which guarantees a domestic remedy for a breach of Convention rights and freedoms. However, the Court has found above that the applicant’s complaints under Articles 6 and 8 of the Convention, as well as under Article 14 taken in conjunction with Article 1 of Protocol No. 1, are inadmissible. Thus, the applicant has not made out an “arguable claim” of a violation of these provisions with respect to Article 13 of the Convention (see for instance the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14, § 31).

It follows that this part of the application must also be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L. Early J.-P. Costa Deputy Registrar President