THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32800/96 by Ayhan YAVUZ 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 27 June 1996 by Ayhan Yavuz against Austria and registered on 28 August 1996 under file no. 32800/96;

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 national, born in 1965 and living in Turkey . He is repr e sented before the Court by Mr L. Weh , a lawyer practising in Bregenz .

A. Particular circumstances of the case

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

In November 1991 the applicant arrived in Austria . On 1 June 1992 he married an Austrian citizen. Subsequently he requested a work permit and a residence permit. In June 1992 he was given a work permit. The residence permit, however, was refused.

On 12 August 1993 the Bregenz District Administrative Authority ( Bezir k s ­ hauptmannschaft ) issued a deportation order ( Ausweisungsbescheid ) against the applicant. It found that the applicant had no residence permit and that his stay in Austria was therefore unlawful. Thus, his removal from Austria was necessary in the public interest. The applicant, assisted by counsel, instituted appeal proceedings, which were terminated in April 1994 by the decision of the Administrative Court ( Verwaltungsgerichtshof ) which found that the d e portation order was lawful. These proceedings were the issue of Application No. 25050/94 which was declared inadmissible by the European Commission of Human Rights on 16 Jan u ary 1996.

On 11 May 1994 the District Administrative Authority ordered the applicant to leave Austria .

On the basis of the deportation order, the applicant was arrested in October 1994. On 12 October 1994 the applicant, assisted by lawyer, appealed to the Vorarlberg Independent Administrative Panel ( Unabhängiger Verwaltungssenat ) against his detention with a view to expulsion . He argued that his detention was not necessary because five months had already elapsed since the Authority’s order to leave Austria in May 1994. Besides, the Administrative Court ’s decision of April 1994 was no longer enforceable for lapse of time. Furthermore, he r e quested the resumption of the expulsion proceedings and a hearing before the Independent Admini s trative Panel.

On 18 October 1994, having taken into account the case-file and the Administrative Authority’s comments on the applicant’s appeal ( Gegenschrift ), the Independent Administr a tive Panel dismissed the appeal and upheld the applicant’s detention. It found that it was not competent to review the lawfulness of the underlying deportation order. It noted that the A d ministrative Court had found that the measure was lawful and that the applicant had been o r dered to leave Austria on several occasions, but had not complied. He had been lawfully d e tained with a view to enforcing the expulsion, in accordance with Section 41 of the Aliens Act ( Fremdengesetz ). It noted further that the applicant was mistaken when arguing that the depo r tation order was no longer enforceable. Finally, it found that no hearing was necessary because the factual basis was clear from the file.

On 29 November 1994 the applicant filed a complaint with the Constitutional Court ( Verfassungsgerichtshof ). He argued that his detention was not necessary and that the Ind e pendent Administrative Panel had violated Article 5 § 4 of the Convention as it had not held a hearing and had not communicated the District Authority’s comments on his appeal.

On 28 February 1995 the Constitutional Court refused to deal with the case and tran s ferred it to the Administrative Court . It found that Article 5 § 4 of the Convention did not gua r antee a public hearing, and that access to the file as well as the submission of any further obse r vations had been possible for the applicant throughout the proceedings.

On 10 October 1995 the Administrative Court dismissed the complaint. It found that the detention with a view to expulsion had been necessary. As to a hearing, access to the file and the possibility to submit further information, it agreed with the Constitutional Court . The A d ministrative Court ’s decision was served upon the applicant on 27 December 1995.

B. Relevant domestic law

Section 41 of the Aliens Act 1992 ( Fremdengesetz ), applicable at the material time, allows the arrest and detention of an alien if these measures are necessary to ensure, inter alia , expulsion. The detainee must be released as soon as the grounds for detention cease to exist. The maximum period of detention is li m ited to two months (Section 48).

Everyone arrested and detained under the Aliens Act has the right to apply to the competent Independent Administrative Panel and to challenge the lawfulness of the arrest and the detention order (Section 51 § 1). An appeal may be filed either directly with the Indepen d ent Administrative Panel or with the authority of first instance. In the latter case this authority has to present the appeal to the Independent Administrative Panel within a maximum delay of two days (Section 51 § 2). Besides, the detaining authority has to inform the Panel immediately in case of the applicant’s release (Section 51 § 3). If the detainee, however, is not released b e fore, the Independent Administrative Panel has to decide on the continuation of the detention within one week (Section 52 § 2).

Section 17 of the General Administrative Procedure Act ( Allgemeines Verwaltungsve r fahrensgesetz ) provides for the right to inspect the case-files. This section is applicable to pr o ceedings concerning the review of an arrest or a detention with a view to expulsion.

COMPLAINTS

The applicant complains under Article 5 § 4 of the Convention about the lack of an oral hearing and the lack of access to the file, in particular to the District Administrative Authority’s comments, in the proceedings he instituted on the lawfulness of his detention with a view to expulsion.

THE LAW

The applicant complains under Article 5 § 4 of the Convention about the lack of an oral hearing and the lack of access to the file, in particular to the District Administrative Authority’s comments, in the proceedings he instituted on the lawfulness of his detention with a view to expulsion.

Article 5 § 4 reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Court notes that proceedings for review of an arrest or a detention with a view to expulsion are urgent matters which have to be dealt with speedily. In order to ensure that d e cisions are taken expeditiously, Section 51 § 2 of the Aliens Act 1992 obliges the administr a tive authority to present an appeal within a maximum delay of two days to the Independent Administrative Panel. Furthermore, according to Section 52 § 2, the Panel has to decide within one week if the person is still detained. The Court considers that in these special ci r cumstances, where the Independent Administrative Panel has to decide within a few days, the Panel cannot be obliged to institute exchanges of documents which render it impossible to take a decision within the statutory time-limit. However, this consideration must be qualified by a right for the applicant or his counsel to have an opportunity to inspect the case-file whenever they wish, even if the case-file has already been transferred to the Independent Administrative Panel. Such a right is provided for by Section 17 of the General Administr a tive Proc e dure Act.

The Court observes that, in the present case, the proceedings before the Independent Administrative Panel lasted from 12 October 1994, when the applicant appealed, until 18 O c tober 1994, when the decision was rendered, thus the Independent Administrative Panel r e spected the legal time-limit. Furthermore, there is no evidence that the Panel refused the a p plicant or his counsel the right to inspect the case-file. Rather it appears that neither the appl i cant nor his counsel requested the inspection of the file during these proceedings .

Having regard to the specific features of the review proceedings, in particular the short time-limit for a decision to be taken by the Independent Administrative Panel, the Court does not find any appearance of a violation Article 5 § 4 of the Convention in this r e spect.

As regards the lack of an oral hearing, the Court recalls that Article 5 § 4 of the Co n vention does not guarantee an absolute right to an oral hearing in the proceedings instituted to review the lawfulness of an arrest or a detention. However, in matters where questions arise which involve, for example, an assessment of the applicant’s character or mental state, the Court has held that it may be essential to the fairness of the proceedings that the applicant be present at such a hearing (see Hussain and Singh v. United Kingdom judgments of 21 Febr u ary 1996, Reports of Judgments and Decisions 1996-I, p 271, §§ 59-61 and p 300, §§ 67-69).

The Court further recalls that all that is required for a detention with a view to expu l sion to be lawful under Article 5 § 1 (f) of the Convention is that “action is being taken with a view to deportation or extradition”. It is therefore immaterial for the lawfulness of the appl i cant’s detention whether the underlying decision to expel or extradite can be justified under national or Convention law (see the Chahal v. United Kingdom judgment of 15 November 1996, Reports 1996-V, pp 1862-1863, § 112).

The Court observes that in the present case the applicant was detained with a view to expulsion. Thus, the only question that could be raised as to the lawfulness of detention  to the review of which question the Independent Administrative Panel was limited  was whether or not any action against the applicant with a view to his deportation was being taken by the competent authorities. The answer to this question was in no way related to any a s sessment of the applicant’s character, his mental state or any comparable issue. The Court, ther e fore, cannot find that an oral hearing would have been necessary.

Accordingly, the lack of such a hearing does not disclose any appearance of a viol a tion of the applicant’s rights under Article 5 § 4.

It follows that the application must be rejected as being manifestly ill-founded purs u ant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé N. Bratza Registrar President