CONCURRING OPINION OF M K. HERNDL

I fully share the Commission's view that not lifting the residence prohibition imposed on the applicant in the present case constitutes a violation of Article 8 of the Convention. There are, however, certain specific elements of the case, partly noted in the Commission's Report, which in my view have to be regarded as the decisive ones for the final assessment. I should accordingly like to refer to those elements once more even if this may be seen as repetitive in some way.

In the deportation/expulsion cases concerning the application of Article 8 which have come before the Court, the latter has inevitably and consistently taken into account as an important element for its assessment of the situation the personal conduct of the applicant (see i.a . the cases of Moustaquim (1991), Beldjoudi (1992) Nasri (1995) and most recently Boughanemi (1996); see in particular Eur. Court HR, Boughanemi v. France, judgment of 24 April 1996, Reports of Judgments and Decisions 1996-II, pp. 609-610, paras. 43 and 44).

A careful examination of the case-file tends to show that in the present case this decisive element was not adequately taken into consideration, if not misinterpreted, by the authorities of the respondent State when deciding that the interests of the State outweighed those of the applicant. When balancing the legitimate interests of the State especially in the area of the prevention of disorder or crime, against the legitimate interests of the individual, the authorities must under all circumstances proceed fairly and objectively and avoid jumping to conclusions which are not really substantiated. This is, in fact, one of the basic tenets of the Convention, a tenet which has found expression mainly in Article 6.

Has this principle been respected in the present case? While the applicant admittedly was convicted for offences under the Narcotics Act, the criminal court of first instance, when assessing his degree of guilt and dangerousness, had regard to his good conduct (see para. 18 of the Report) and stayed the execution of the sentence. Given the success of the therapy which the applicant underwent following his conviction, as certified by medical reports, the competent Court of Appeal then suspended the applicant's sentence altogether for a probationary period (see paras. 28 and 29 of the Report). This contrasts with the Administrative Court's decision upholding the residence ban without entering into a proper evaluation of the applicant's behaviour and conduct after his trial and conviction. While the lower instances simply had stated that the ban was necessary "to prevent further criminal acts" by the applicant, the Administrative Court based its decision mainly on the opinion that drug related offences are in general particularly dangerous and that this would per se justify the imposition of a residence ban even in cases where an offender is completely integrated in Austria. Neither view would seem to correspond to the reality of the applicant's case.

It is this element, namely the lack of an adequate appraisal of the applicant's conduct when determining whether his continued presence in Austria indeed endangered public security and was thus necessary for the "prevention of disorder or crime" - a determination which presupposed a fair balancing of the interests involved (on the basis of the objective elements of the case including the applicant's subjective and objective situation) - which may be considered as bordering on the arbitrary. The Commission was therefore correct in concluding that the interference with the applicant's rights under Article 8 of the Convention was not proportionate to the legitimate aim pursued.