THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37295/97 by Mehmet YILDIZ and Others against Austria

The European Court of Human Rights, sitting on 22 May 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr P. KÅ«ris , Mr M. Ugrekhelidze , judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 18 July 1997 and registered on 7 August 1997,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mehmet Yildiz, Güler Yildiz and Yesim Yildiz, are Turkish nationals , born in 1975, 1976 and 1995, respectively. The first applicant is currently residing in Turkey, while the second and third applicants live in Austria. They are represented before the Court by Mr L. Weh, a lawyer practising in Bregenz.

A. The circumstances of the case

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

The first applicant went to Austria in 1989 to live with his parents and siblings. From 1994 he lived with the second applicant, who was born in Austria, and has lived there all her life. They married under Muslim law in April 1994 and under Austrian civil law in March 1997. Their daughter, the third applicant, was born on 14 August 1995.

On 5 January 1993 the first applicant was sentenced to three days’ imprisonment on probation for shoplifting by a Swiss Court.

On 19 May 1993 the Dornbirn District Court ( Bezirksgericht ) convicted him of theft without pronouncing a sentence. The court established that in 1992 the first applicant had stolen moped-accessories, cutlery and other commodities, two gold rings and a gold bracelet, worth altogether less than 25,000 Austrian schillings (ATS). A probation period of three years was fixed.

In 1992 and 1993 the first applicant was convicted of three minor breaches of traffic rules and sentenced to pay fines of ATS 300, 500 and 1,000 respectively. Between February and April 1994 he was convicted three times of driving a car without a driving licence and sentenced to pay fines of ATS 3,000, 4,000 and 5,000 respectively.

On 28 February 1994, still without a driving licence, he overran a red traffic light and exceeded the speed limit of 60 km/h, driving at 170 km/h. On 6 April 1994 the Dornbirn District Authority ( Bezirkshauptmannschaft ) convicted him of these offences and sentenced him to a fine of ATS 14,500.

On 21 September 1994 the Dornbirn District Authority imposed a five year residence ban on the first applicant.

On 24 January 1995 the Vorarlberg Public Security Authority ( Sicherheitsdirektion ) dismissed the first applicant’s appeal.

The authority referred to section 18 § 1 and § 2 (1) and (2) of the Aliens Act 1992, which paragraphs provide that a residence ban has to be issued against an alien, inter alia , if he has been convicted more than once for similar offences by a domestic or foreign court, or if a fine has been imposed on him more than once for a grave administrative offence by an administrative authority. The Authority found that both conditions had been met in this case.

Further, the Vorarlberg Public Security Authority, referring to the first applicant’s stay in Austria since 1989, the fact that his close family was living in Austria, his co-habitation with a Turkish national who was born in Austria and his employment, found that the residence ban constituted an interference with the applicant’s right to respect for his private and family life. However, it was necessary for the aims set out in Article 8 § 2 of the Convention, namely for the prevention of crime and the protection of the rights of others. Given the first applicant’s continuous disregard of Austrian law, the Authority assumed that it was probable that he would commit similar offences in the future. Thus, despite the first applicant’s high degree of integration in Austria, the public interest in issuing a residence ban outweighed the first applicant’s interest in staying. This decision was served on the first applicant on 8 February 1995.

On 11 May 1995 the applicant was taken into detention with a view to his expulsion.

On 13 June 1995 the Constitutional Court refused to deal with the first applicant’s complaint as it lacked sufficient prospects of success.

Subsequently, the first applicant lodged a complaint with the Administrative Court. He requested that the decisions relating to the residence ban against him be quashed for errors of law. He submitted that the contested decisions violated his right to respect for his private and family life. In particular, he complained that the competent authorities had failed to duly weigh his interests in staying in Austria against the public interest of issuing a residence ban against him. Although he had been convicted of theft, no punishment had been imposed on him. The other convictions only concerned administrative offences. Neither his fiancée, the second applicant, who was born in Austria and worked there, nor their daughter, the third applicant, could be expected to follow him to Turkey.

Further, the first applicant submitted that Austria had become a member of the European Union on 1 January 1995 and was therefore bound by the Association Agreement between the European Union and Turkey. According to this Agreement, and the decisions on its implementation, Turkish workers who had been legally employed in a member State for a certain period had a right of free access to the employment market and also to a residence permit. In this context the first applicant requested the Administrative Court to refer the case to the Court of Justice of the European Communities for a preliminary ruling under Article 177 (3) of the EEC Treaty. Moreover, measures of public security against such workers were only possible if the public interest was massively and actually endangered. Therefore it would contradict EU-law to issue a residence ban against the child of a migrant worker’s family who has never committed anything other than petty crimes.

On 10 August 1995 the Administrative Court granted the first applicant’s complaint suspensive effect. Thereupon, on 11 August 1995, the applicant was released from detention with a view to his expulsion.

On 4 December 1996 the Administrative Court dismissed the first applicant’s complaint. It found that the contested residence ban served aims set out in Article 8 § 2 of the Convention, namely the prevention of crime and the protection of the rights of others. Further, the Public Security Authority had duly weighed the interests involved. Given the fact that the first applicant had committed several criminal and administrative offences during a protracted period, the public interest weighed more heavily than the private interest, even in cases where an alien was integrated like the first applicant.

As to the Association Agreement between the European Union and Turkey, and in particular decree no. 1/80 of the Association Council, the Administrative Court noted that the rights contained therein only applied after a certain number of years of lawful employment. The first applicant had failed to submit the relevant facts to the administrative authorities, in particular whether he had been working in Austria for the requisite period. Thus, the Vorarlberg Public Security Authority could not be reproached for not having taken into account that Agreement and the above decree. The decision was served on the first applicant on 20 January 1997.

On 16 June 1997 an order to leave Austrian territory was served on the first applicant, with which he complied on 1 July 1997. He is currently living in Turkey while the second applicant and third applicant are still living in Austria and have occasionally visited him in Turkey. The second applicant is working in Austria. The validity of the first applicant’s residence ban expired in September 1999. However, he submits that the possibilities of legally returning to Austria under a family reunification scheme are very limited and involve long waiting periods.

COMPLAINTS

The applicants complain under Article 8 of the Convention that the residence ban against the first applicant violates their right to respect for their family life. They submit that the residence ban was not “prescribed by law” within the meaning of Article 8 § 2 of the Convention, since the relevant domestic law was contradicted by directly applicable EU law. They allege that the Administrative Court decided arbitrarily and failed to refer the case to the Court of Justice of the European Communities for a preliminary ruling under Article 177 (3) of the EEC Treaty. Nor was the residence ban necessary in a democratic society, as the first applicant only committed minor offences. Moreover, the competent authorities did not duly take his interests in staying in Austria into account, and even failed to establish the relevant facts.

In their observations in reply the applicants also rely on Article 6 as regards the alleged failure of the Administrative Court to refer the case to the Court of Justice of the European Communities.

THE LAW

1. The applicants complain about a violation of their right to respect for their family life as guaranteed by Article 8 of the Convention which, so far 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 is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others.”

The Government contend that the relevant time for assessing whether the applicants had any private and family life in Austria is at the latest 8 February 1995 when the decision of the Public Security Authority was served on the first applicant. At that time he had lived for about five years in Austria with his parents and siblings and was cohabiting with the second applicant. Thus, he had established family ties in Austria which were, however, not very intense. Subsequent developments such as the birth of third applicant are not to be taken into account.

The Government accept that there was an interference with the applicants’ right to respect for their family life. As to the applicants’ allegation that the interference was contrary to the Association Agreement between the European Union and Turkey, the Government point out that the Administrative Court dealt in detail with this submission but dismissed it on the ground that the applicant did not fulfil the conditions set out therein. Further, the Government assert that the measure was proportionate, having regard to the first applicant’s convictions for shoplifting, theft and various administrative offences, and the consideration that his family life as established at the relevant time could not weigh very heavily in the balance. In particular, he is not a second generation immigrant and is well acquainted with the language and society of his country of origin.

For their part, the applicants consider that the relevant point in time for an assessment of their family life is the service of the Administrative Court’s decision, namely 20 January 1997 or at the earliest 8 February 1995, when the decision of the Public Security Authority was served. Even at that time the first and second applicant had lived together for a year and the second applicant was three months pregnant.

Further, the applicants maintain that the interference with their family life was unlawful. They contend that the Administrative Court would have been obliged to refer the case to the Court of Justice of the European Communities for a preliminary ruling under Article 177 (3) of the EEC Treaty. Moreover, its conclusion on the application of the Association Agreement between the European Union and Turkey was arbitrary. As to the necessity of the interference, the applicants claim that the residence ban against the first applicant is disproportionate, in particular as he has all his family ties in Austria and has only been sentenced to modest fines for administrative offences of a rather petty nature.

The Court considers, in the light of the parties’ submissions, that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. Insofar as the applicants rely on Article 6 of the Convention, complaining that the proceedings before the Administrative Court were unfair, 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 ( Maaouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X).

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaint that the residence ban against the first applicant violates their right to respect for their family life;

Declares inadmissible the remainder of the application.

S. Dollé J.-P. Costa Registrar President