CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 mars 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial } .s6814D082 { width:33.64pt; display:inline-block }      The European Commission of Human Rights sitting in private on 13 March 1986, the following members being present:                   MM C.A. NØRGAARD, President                    G. SPERDUTI                    J.A. FROWEIN                    E. BUSUTTIL                    G. JÖRUNDSSON                    G. TENEKIDES                    S. TRECHSEL                    B. KIERNAN                    A.S. GÖZÜBÜYÜK                    A. WEITZEL                    J.C. SOYER                    H.G. SCHERMERS                    G. BATLINER                    J. CAMPINOS                    H. VANDENBERGHE                Mrs G.H. THUNE                Sir Basil HALL                  Mr. H.C. KRÜGER, Secretary to the Commission   Having regard to Art. 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 1 December 1982 by H.I. against Austria and registered on 3 December 1982 under file No. 10215/82;   Having regard to:   -        the Commission's decision of 14 July 1983 to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility;   -        the observations submitted by the respondent Government on 18 October 1983 and the observations in reply submitted by the applicant on 13 January 1984;   -        the Commission's decision of 9 July 1984 to invite the parties to an oral hearing on the admissibility and merits of the application;   -        the Commission's decision of 12 October 1984 to postpone the hearing in the light of the parties' information that they were engaged in negotiations with a view to reaching an agreed solution of the case;   -        the information submitted by both parties on 10 December 1985 that a solution had been agreed upon;   -        the applicant's declaration of 13 February 1986 that in the light of the above agreed solution he wishes to withdraw the application;   Having deliberated;   Decides as follows:   THE FACTS   The applicant is a Turkish citizen born in 1946 who is actually living at Höchst, Vorarlberg.   He is represented by Mr. W.L. Weh, a lawyer practising in Bregenz.   The applicant has been living in Austria since 1971.   His wife joined him in 1974 and two children born in 1978 and 1981 respectively also live with him in Austria.   His five elder children have remained in Turkey.   In April 1980, the District Authority of Bregenz issued a temporary residence prohibition against the applicant until 31 December 1985. It was based on Section 3 (1) of the Immigration Control Act (Fremdenpolizeigesetz BGBl.75/1954) which provides that a residence prohibition may be issued upon an alien whose presence in the federal territory endangers the public peace, order or security or is otherwise contrary to the public interest.   The reason for the measure in this particular case were repeated road traffic offences, the last one involving a withdrawal of the applicant's driving licence for 18 months.   The applicant's appeal was rejected by the Regional Directorate of Police (Sicherheitsdirektion) in August 1980.   It confirmed that repeated administrative offences against road traffic regulations, although not included in the list of specific cases justifying a residence prohibition under Section 3 (2) of the Immigration Control Act, nevertheless could provide a basis for such a measure under the general clause contained in Section 3 (1).   Despite the withdrawal of his driving licence, the applicant was considered as constituting a potential danger for the public peace, order and security.   In the authority's opinion, considerations relating to the applicant's personal circumstances did not outweigh the public interest in his removal from the Austrian territory.   The applicant then filed a constitutional appeal in which he invoked in particular Art. 8 (Art. 8) of the Convention, alleging that the Immigration Control Act violated this provision because it did not limit the authorities' power to issue a residence prohibition against a person by any considerations based on his family situation.   He claimed that he had an established family life in Austria, and that the residence prohibition which interfered with this family life was disproportionate in the circumstances in particular because the public interest was already protected by the withdrawal of his driving licence which moreover had been ordered for a shorter period than the residence prohibition.   The Constitutional Court rejected this complaint by a decision of 28 February 1981.   It confirmed an earlier decision (B343/79, official collection of decisions No. 8792) where it had expressed the opinion that Section 3 of the Immigration Control Act was in principle capable of being applied in conformity with Art. 8 (Art. 8) of the Convention. The family situation of the person concerned had to be taken into account and had to be weighed against the public interest in his removal from the federal territory.   The applicant's further complaints were rejected on the grounds that the constitutional law did not provide any guarantee against expulsion measures concerning an individual alien, and that the principle of equality before the law which, inter alia, forbids an arbitrary or unreasonable application of the law, could not be invoked by an alien because it was only guaranteed to Austrian citizens.   In accordance with the applicant's request, the Constitutional Court referred the case to the Administrative Court with a view to establishing whether any provisions of ordinary law had been infringed.   The applicant submitted supplementary observations to the Administrative Court pointing out in particular that the authority had omitted to take evidence on his personal and family situation and had failed to give complete reasons for its decision.   The administrative offence which had given rise to the residence prohibition had been given an exaggerated weight in comparison to the cases explicitly stated in Section 3 (2) of the Immigration Control Act.   The Administrative Court rejected the complaint by a decision of 29 September 1982.   It considered that the road traffic offences of which the applicant had been found guilty and which he had not denied were by no means insignificant and were therefore capable of justifying a residence prohibition under Section 3 (1) of the Immigration Control Act.   The authority's assumption that the applicant might also in future endanger the road traffic despite the withdrawal of his driving licence and the sale of his car was based on sufficient grounds and did not violate the law.   The argument that the authority had failed to investigate the applicant's personal and family situation was without object because these circumstances could only be relevant for a decision under Section 6 (2) of the Immigration Control Act (enforcement of a prohibition order) but not for the question of ordering a residence prohibition as such.   Insofar as the applicant had invoked Arts. 8 and 14 (Art. 8, art. 14) of the Convention, the Administrative Court referred to the Constitutional Court's above decision according to which no violation of the applicant's constitutional rights under these provisions had been established. Apart from that it observed that the measure complained of was a restriction of the applicant's rights under Art. 8, para. 1 (Art. 8-1) which was provided for by law as required by Art. 8, para. 2 (Art. 8-2) and which in the concrete case was necessary to protect the public order and security as appeared from the reasons given which corresponded to the factual and legal situation.   No further remedy was available against this decision.   In connection with the above proceedings, the applicant encountered a number of difficulties to remain in the Austrian territory pending the final decision.   His work permit and visa expired on 20 July 1980 and only a short prolongation of the visa was granted at his request by the District Authority of Bregenz.   The work permit was extended until 31 December 1981.   Following the rejection of his appeal by the Vorarlberg Directorate of Police on 22 August 1980, the applicant was arrested on 23 September 1980.   He was told that he would be detained with a view to his expulsion to Turkey.   Due to intervention of the Federal Ministry of the Interior he was however released on the following day and a suspension of the execution of the order was granted to him.   The applicant subsequently complained of his detention to the Constitutional Court which found by a decision of 26 February 1982 that it had in fact been unconstitutional because it had not been ordered by a prior administrative decision.   On 16 October 1980, the District Authority allowed a request of the applicant to suspend the execution of the residence prohibition.   The suspension was subject to revocation at any time and limited until 31 March 1981.   On 31 March 1981, the applicant requested a prolongation of the suspension order until the hearing of his case by the Administrative Court or until 30 June 1981.   He referred in particular to the fact that his wife had given birth to a child in February.   The request was first refused by a decision of 28 April 1981, but this decision was revoked on 4 May 1981 on the ground that the applicant had not been heard on the result of his wife's medical examination. After having received the applicant's submissions on this issue, the District Authority again refused the application by a decision of 24 June 1981. By decision of the same date it ordered the applicant's detention in view of his expulsion to Turkey and the applicant was immediately arrested and deported to Turkey.   However, on the very same day, the 24 June 1981, the Administrative Court allowed an application for suspensive effect which the applicant had in the meantime made in connection with the proceedings before this court.   It noted that the public interest in the immediate execution of the residence prohibition against the applicant was in substance based on the mere possibility that he might commit further road traffic offences, an assumption which was not supported by any concrete evidence.   In the given circumstances the public interest did not outweigh the important private interests of the applicant such as the loss of his job, the possible rupture of his family ties, and the inavailability of adequate housing in Turkey.   Following this decision of the Administrative Court, the applicant applied for permission to re-enter the Austrian territory. This was granted by a decision of the Bregenz District Authority of 13 August 1981.   The authorisation to stay on Austrian territory was limited until the Administrative Court's decision on the merits.   A new work permit was refused to him.   After the negative decision of the Administrative Court, the applicant was ordered to leave Austria by 28 December 1982.   He could then obtain a further suspension of the execution of the residence prohibition in view of the present proceedings before the Commission. The applicant thus could in fact remain in Austria and subsequently was also granted a new work permit.   COMPLAINTS   The applicant complained of violations of his rights under Arts. 6, 8, 13 and 14 (Art. 6, art. 8, art. 13, art. 14) of the Convention.   1.       As regards Art. 6 (Art. 6), he invoked the Commission's decision on the admissibility of Application No. 2991/66, Alam and Khan v. the United Kingdom where the Commission recognised that the right to entertain family contacts might come within the concept of a civil right.   He further observed that the residence prohibition interfered with his employment contract and, as a consequence of the loss of his working income, with his maintenance obligations vis-à-vis his family.   He considered Art. 6, para. 1 (Art. 6-1) had been breached by the absence of full judicial control by an independent tribunal and by the fact that throughout the proceedings he was never heard orally and in person about his personal and family situation.   2.       As regards Art. 8 (Art. 8), the applicant submitted that his family life was established in Austria where he lived with his wife and a child and where a further child was born to him in February 1981.   The Constitutional Court has recognised that in similar circumstances a residence prohibition must be considered as constituting an interference with family life and must thus be justified under Art. 8, para. 2 (Art. 8-2) of the Convention.   He submitted that in the present case the restriction was neither "prescribed by law" nor "necessary in a democratic society". The lawfulness of the residence prohibition was challeged because of the authorities allegedly circumvented the more stringent requirement of Section 3 (2)(b) of the Immigration Control Act by basing it on the general clause in Section 3 (1) of that Act.   As regards the necessity of this measure, the applicant submitted that it was not in line with the minimum response principle. Under the road traffic regulations, the authority had apparently considered that he would again be fit for driving after 18 months - otherwise it would have been obliged to withdraw his licence for an indefinite period. In these circumstances it was illogical to base a residence prohibition for a considerably longer period (almost six years) exclusively on the assumption of his being unfit for driving. The disproportionality of the measure had in fact been recognised by the Administrative Court in its decision on the suspensive effect.   In the main decision, however, his family situation was not at all taken into account although it should have been weighed against the public interest.   3.       The applicant alleged a breach of Art. 13 (Art. 13)   of the Convention because the courts of public law in effect failed to review the case under Art. 8 (Art. 8) of the Convention; the Constitutional Court did not examine whether the measure was justified under Art. 8, para. 2 (Art. 8-2) in the particular case, and the Administrative Court expressly refused to apply Art. 8 (Art. 8) to the issue of the residence prohibition as such.   4.       As regards Art. 14 (Art. 14) of the Convention, the applicant did not submit any detailed arguments.   He only observed that the constitu- tional principle of equality before the law as understood in the Austrian legal system is not applicable to aliens who thus are not protected against unreasonable or arbitrary application of the Immigration Control Act.   This has been expressly confirmed by the Constitutional Court in the present case.   PROCEEDINGS BEFORE THE COMMISSION   The application was introduced on 1 December 1982 and registered on 3 December 1982.   The applicant's wife and his two children living with him in Austria subsequently also introduced an application based on the same facts and containing similar complaints (Application No. 10266/83), which the Commission examined jointly with the present application.   However, this application was eventually rejected by a decision of 9 July 1984.   The Commission first examined the application on 10 March 1983 when it decided to ask the applicant for further information on his family situation.   This information was submitted on 14 April 1983.   On 14 July 1983, the Commission resumed its examination and decided to give notice of the application to the respondent Government and to invite that Government, in accordance with Rule 42 (2)(b) of the Rules of Procedure, to submit observations in writing on the admissibility and merits of the application.   The parties were invited to deal in particular with the following questions:   1.       Can the interference with the applicant's private and family life brought about by the issue of a residence prohibition against him be justified under Art. 8, para. 2 (Art. 8-2) of the Convention?   2.       Having regard to the combined effect of the Constitutional and the Administrative Courts' decisions in the applicant's case, did the proceedings before these courts constitute effective remedies in the sense of Art. 13 (Art. 13) of the Convention to ensure that the residence prohibition issued against the applicant was in fact in conformity with the requirements of Art. 8 (Art. 8) of the Convention?   3.       Having regard to the inapplicability of the principle of equality before the law to foreign nationals as found by the Constitutional Court in the applicant's case, is there a discrimination as between Austrian and foreign nationals as to the protection of their right to respect for their family life, in particular against arbitrary measures or measures based on an unreasonable interpretation of the law (Art. 14 (Art. 14) combined with Arts. 8 and 13 (Art. 8, art. 13) of the Convention)?   The Government's observations were submitted within the time-limit fixed for that purpose, on 18 October 1983.   The applicant was invited to reply before 8 December 1983, but this time-limit was subsequently extended, at his request, until 15 January 1984.   The observations were in fact submitted on 13 January and supplemented on 2 April 1984.   Without the case having returned before the Commission, the Government submitted additional observations on 24 April 1984 and the applicant commented thereon on 23 May 1984.   The applicant had already previously applied for legal aid, and this was granted by the Commission on 16 December 1983.   On 14 July 1984, the Commission decided in accordance with Rule 42 (3)(b) of the Rules of Procedure, to invite the parties to submit further observations orally at a hearing on the admissibility and merits of the application.   The hearing was scheduled to take place on 7 March 1985.   However, by a letter received on 4 February 1985, the applicant's lawyer informed the Commission that the respondent Government had contacted him with a view to reaching an agreed solution, and he would not exclude that such a solution might in fact materialise. On 22 February 1985, the respondent Government requested the Commission to postpone the hearing as there were good prospects of reaching an agreed solution with the applicant.   In the light of these developments, the Commission's President ruled on 25 February 1985 to cancel the hearing on 7 March 1985.   The Commission considered the state of procedure on 12 October 1985. It noted that the negotiations between the parties were still continuing and therefore it decided to adjourn the further consideration of admissibility.   On 10 December 1985, the Government informed the Commission that a solution had been agreed with the applicant on the following basis:   1.       A lump-sum of AS 240,000.-   will be paid to the applicant as compensation for all fees for the procedures and for all other financial claims.   2.       The Federal Ministry of the Interior has instructed all its authorities handling matters concerning foreigners (Fremdenpolizei) in Austria to take particularly into account the family situation when taking measures affecting such persons.   3.       The banishment from Austrian territory (Aufenthaltsverbot) is formally withdrawn.   Likewise unrestricted visa will be granted to the applicant and his family.   4.       The Federal Ministry for Foreign Affairs will use its influence on the Federal Ministry for Social Affairs in order to assure that the applicant will not suffer in his future career from any damages resulting from the temporary interruption of his employment.   The applicant's attorney, in turn, stated that he will not make any further claims and will withdraw his application which he filed with the Commission.   The applicant informed the Commission by a letter of the same date (10 December 1985) that this agreement still required the approval of the Federal Ministry of Finance, and that he would withdraw the application as soon as this approval had been given.   By a further letter of 13 February 1986 the applicant informed the Commission that most parts of the agreement had already been fulfilled.   The necessity to consider the family situation of a foreign national subject to a residence prohibition had not only been emphasised in a circular instruction of the Federal Ministry of Interior of 14 November 1985 (GZ 79030/10-II/14/85), it now would even be regulated by specific legislative provisions.   In fact, by a decision of 12 December 1985 the Constitutional Court had quashed Section 3 of the Immigration Control Act, on the ground of lacking precision, because it failed to provide for the consideration of the family situation of a person struck by a residence prohibition. Therefore, not only the applicant's claims had been satisfied, but respect for Art. 8 (Art. 8) had been ensured on a general basis. The applicant considered that in these circumstances the general interest did not require the continuation of the proceedings, and therefore he declared himself willing to withdraw the application.   REASONS FOR THE DECISION   The Commission finds that an agreed solution has been reached between the parties which not only includes individual measures satisfying the applicant's claims, but also a general instruction to the authorities concerned intended to bring the practice of these authorities in conformity with the requirements of Art. 8 (Art. 8) of the Convention. The Commission finds that in these circumstances there are no reasons of a general character affecting the observance of the Convention which require further examination of the application. Accordingly the Commission accedes to the applicant's request to withdraw his case.   For these reasons, the Commission:   DECIDES TO STRIKE THE APPLICATION OFF ITS LIST OF CASES   Secretary to the Commission                President of the Commission   (H.C. KRÜGER)                               (C.A. NØRGAARD)