THIRD SECTION

DECISION

Application no. 30964/96 by Senol KÖSE against Austria

The European Court of Human Rights ( Third Section ) sitting on 18 January 2000 as a Chamber composed of

Sir Nicolas Bratza, President , Mr J.-P. Costa, Mrs F. Tulkens, Mr W. Fuhrmann , Mr K. Jungwiert, Mr K. Traja, Mr M. Ugrekhelidze, judges ,

and Mrs S. Dollé , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 January 1996 by Senol Köse against Austria and registered on 4 April 1996 under file no. 30964/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen, born in 1977 and living in Vienna ( Austria ). He is represented before the Court by Mr H. Vana , a lawyer practising in Vienna .

A. Particular circumstances of the case

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

On 17 November 1994 the Vienna Federal Police Authority ( Bundespolizeidirektion ) issued a residence prohibition against the applicant. The Authority noted the applicant’s criminal record which comprised three convictions for theft and burglary and one for drug related offences. It also noted that the applicant was born in Vienna and had been living there ever since together with his parents and his younger brother and sister. It found that the applicant’s further stay in Austria was contrary to the public interest. These considerations were not outweighed by his family ties in Austria .

On 7 December 1994 the applicant, assisted by counsel, appealed against this decision. Relying on Article 8 of the Convention he submitted, inter alia , that the Federal Police Authority had failed to give sufficient weight to his private and family situation.

On 31 May 1995 the Vienna Public Security Authority ( Sicherheitsdirektion ) dismissed the applicant’s appeal. It noted that the Austrian courts had imposed sentences between four and, the last time, fifteen months’ imprisonment. Moreover, the applicant had been convicted of drug related offences. It was for these particular reasons that the public interest in terminating the applicant’s stay in Austria outweighed considerations relating to his private and family situation.

On 3 July 1995 the applicant filed a complaint with the Constitutional Court ( Verfassungsgerichtshof ) against the residence prohibition.

On 25 September 1995 the Constitutional Court declined to deal with the applicant’s complaint as it lacked any prospect of success and, on 1 December 1995, remitted the case to the Administrative Court ( Verwaltungsgerichtshof ).

On 15 October 1998 the Administrative Court discontinued the proceedings on the ground that the matter had been resolved. The Administrative Court referred to Sections 38 and 114 of the 1997 Aliens Act ( Fremdengesetz 1997). According to these provisions the residence prohibition issued against the applicant had lost its legal force ( ausser Kraft getreten ).

B. Relevant domestic law

Under Section 38 § 4 of the Aliens Act 1997 ( Fremdengesetz 1997) a residence prohibition must not be imposed if, inter alia , the alien has grown up in Austria .

Section 114 § 4 provides that residence prohibitions against which a complaint has been filed with the Administrative Court or the Constitutional Court lost their legal force when the 1997 Act entered into force, unless the impugned residence prohibition would have had a legal basis under the provisions of that Act.

Under Section 115 § 2 the Administrative Court can take its decision that the matter has been resolved in (1) cases which were pending since 1995 only after 1 April 1998, (2) cases which were pending since the first half of 1996 only after 1 July 1998, (3) cases which were pending since the second half of 1996 only after 1 January 1999, and (4) cases which were pending since the first half 1997 only after 1 July 1999.

COMPLAINT

The applicant complains under Article 8 of the Convention that the residence prohibition imposed on him violated his right to respect for his private and family life.

THE LAW

The applicant complains under Article 8 of the Convention that the residence prohibition imposed on him violated his right to respect for his private and family life.

Article 8 of the Convention reads as follows:

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

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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court observes, however, that on 15 October 1998 the Administrative Court discontinued proceedings in the applicant’s case because the residence prohibition imposed on him had lost its legal force and the matter was therefore resolved. Thus, the residence prohibition which is the object of the present application no longer exists.

In the light of these considerations, the Court concludes that the matter giving rise to the application has been resolved, within the meaning of Article 37 § 1 (b) of the Convention (see Adegbie v. Austria., Comm Report 15.9.97, § 15). Moreover, as regards the issues raised in the present case, the Court finds no reasons of a general character affecting respect for human rights, as defined in the Convention, which require the further examination of the application by virtue of Article 37 § 1 in fine .

For these reasons, the Court, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES .

S. Dollé N. Bratza Registrar President