CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 septembre 1991

.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 }                            AS TO THE ADMISSIBILITY OF                         Application No. 18203/91                       by B.                       against Austria             The European Commission of Human Rights sitting in private on 3 September 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                   B. MARXER                Mr.   H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 22 March 1991 by B. against Austria and registered on 15 May 1991 under file No. 18203/91;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The facts of the case, as submitted by the applicant, may be summarised as follows.           The applicant, a Turkish citizen of Kurdish origin, was born in 1954.   He currently lives in Wiener Neustadt in Austria.           On 26 January 1985 the applicant arrived in Austria.   His parents and one of his sons live in Austria.   His wife and his other five children live in Turkey.           On 9 July 1990 the Wiener Neustadt Federal Police Directorate (Bundespolizeidirektion) fined the applicant AS 5,000 for having contravened Section 14 para. 1 of the Aliens Act (Fremdenpolizei- gesetz) by transporting to Innsbruck five Turkish citizens who stayed illegally in Austria.           According to Section 14 of the Aliens Act a person who furthers the illegal entry or exit of an alien against payment may be punished with a fine not exceeding AS 50,000.           On 16 July 1990 the Police Directorate imposed a residence prohibition until 16 July 2000 on the applicant in view of the above offence under Section 14 para. 1 of the Aliens Act.   The Directorate considered the residence prohibition to be in the interest of public peace, order and security.           On 8 October 1990 the Provincial Police Directorate (Sicherheitsdirektion) of Lower Austria dismissed the applicant's appeal.   Weighing public and private interests at stake, in particular taking into account the length of his residence and his integration in Austria, the intensity of family relations and the prospective handicap to his and his family's living, the Provincial Police Directorate considered that the residence prohibition was proportionate in view of the facts that only one of his six children and his parents live in Austria whereas the rest of his family lives in Turkey and that he had committed fourteen administrative road traffic offences during the last five years.           On 28 January 1991 the Administrative Court (Verwaltungs- gerichtshof) dismissed the applicant's complaint against the Provincial Police Directorate's decision.   It found that the applicant had cooperated in the illegal entry or exit of aliens against payment. The order of the residence prohibition was therefore necessary to achieve the aims laid down in Article 8 para. 2 of the Convention.   It furthermore found that, if a residence prohibition would not be ordered, the negative consequences for public interests were disproportionate to the implications of the residence prohibition on the applicant and his family, given the fact that the applicant's son in Austria lives with his grandparents and is maintained by his grandfather.     COMPLAINTS           The applicant complains that the residence prohibition imposed upon him violated his right to respect for his private and family life and home under Article 8 of the Convention.     THE LAW           The applicant complains about the residence prohibition of 16 July 1990.   He invokes Article 8 (Art. 8) of the Convention which provides:   "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 Commission recalls that the Convention does not guarantee, as such, the right to enter, remain or reside in a particular country.   However, where a person is excluded from a country where his close family resides an issue may arise under Article 8 (Art. 8) of the Convention (Application No. 10375/83, Dec. 10.12.84, D.R. 40, p. 196 with further references).           The Commission notes that one of the applicant's children and his parents live in Austria.   However, his wife and the other five children live in Turkey.           The Commission finds that the decision of the Austrian authorities to order a residence prohibition interfered with the applicant's right to respect for his family life with regard to his parents and his son in Austria.   It has therefore to examine whether the interference was justified under Article 8 para. 2 (Art. 8-2) of the Convention.           The Commission notes that the decisions of the authorities and the Administrative Court were taken under Section 3 of the Aliens Act.   The interference was therefore in accordance with Austrian law.           Furthermore, the Commission has to examine whether the interference was necessary within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.           The Commission observes that the prevention of disorder or crime is a legitimate aim.   It notes that the residence ban was aimed at preventing the applicant from committing further offences in Austria.   The Commission further notes that the authorities examined the applicant's situation.   In particular, the authorities took into consideration the fact that the applicant's wife and five of his six children live in Turkey, whereas only one of his sons and his parents live in Austria.           In the circumstances the Commission is satisfied that the decision to order a residence prohibition was based on due consideration of the public and private interests involved.   The Commission finds that the interference in the public interest of preventing the applicant from committing further offences in Austria was not disproportionate to the negative implications for the applicant's family life.           The Commission therefore considers that the interference with the applicant's right to respect for his private and family life was necessary for the prevention of crime and thus justified under Article 8 para. 2 (Art. 8-2) of the Convention.           It follows that the complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission, by a majority,             DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)