CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 février 1993

.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. 16714/90                       by Hasan KOSE                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 10 February 1993, the following members being present:              MM.    J.A. FROWEIN, President of the First Chamber                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M. PELLONPÄÄ                  B. MARXER                  G.B. REFFI              Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 23 May 1990 by Hasan Kose against Austria and registered on 13 June 1990 under file No. 16714/90;         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 applicant is a Turkish citizen who, until his deportation on 30 October 1987, lived in Frastantz in Vorarlberg, Austria.   He is represented before the Commission by Mr. W. L. Weh, a lawyer practising in Bregenz.   The facts of the application as submitted by the applicant's representative may be summarised as follows.         On 5 October 1987 the Feldkirch District Authority (Bezirkshaupt- mannschaft) ordered the applicant's provisional detention pursuant to Section 5 para. 1 of the Aliens Act (Fremdenpolizeigesetz) on the ground that a residence prohibition (Aufenthaltsverbot) had been issued by the same authority on 31 July 1986, that the applicant's appeals to the Vorarlberg Directorate of Public Security (Sicherheitsdirektion) and to the Constitutional Court (Verfassungsgerichtshof) and Administrative Court (Verwaltungsgerichtshof) had been unsuccessful, that the applicant had been ordered on 26 June 1987 to leave Austrian territory within one week, that he had been in Austria unlawfully since 13 June 1987 (seven days after he had received the Administrative Court's decision) and that his provisional detention was necessary in order to ensure that he left the country.   The applicant was detained on the same day and deported on 30 October 1987.         The applicant's appeal to the Vorarlberg Directorate of Public Security was rejected on 19 November 1987 on the ground that, given that the applicant had not merely remained in the country without a residence permit, but had stayed notwithstanding a valid residence prohibition, it was clearly in the interests of public order and security to remove such an alien.   The Constitutional Court, by decision of 25 February 1988, declined to deal with the applicant's constitutional complaint on the ground that such a complaint was not excluded from the competence of the Administrative Court, and that there were no specific constitutional questions to be answered. Moreover, the application had no prospect of success.         The applicant's complaint to the Administrative Court was dismissed on 18 October 1989.   The Administrative Court noted that some of the applicant's complaints were not related to the procedural matters at issue and continued:   (German)         "Unter dem Gesichtspunkt einer inhaltlichen Rechtswidrigkeit des       angefochtenen Bescheides macht der Beschwerdeführer geltend, es       liege keine der Voraussetzungen des §5 Abs. 1 FrPolG vor, weil       der alleinige Aufenthalt des Beschwerdeführers in Österreich noch       kein unmittelbar zu beführchtendes strafbares Verhalten       darstelle.   Der Beschwerdeführer übersieht dabei, daß nach der       Judikatur des Verwaltungsgerichtshofes ein Fremder, der sich       entgegen einem aufrechten Aufenthaltsverbot monatelang unerlaubt       im Bundesgebiet aufhält, sehr wohl ein Verhalten setzt, welches       eine Gefahr für die öffentliche Ruhe, Ordnung und Sicherheit       darstellt, weil damit der Tatbestand nach §14 Abs. 1 FrPolG       verwirklicht wird und dabei von einer Geringfügigkeit des       rechtswidrigen Verhaltens keine Rede sein kann (vgl. dazu die hg.       Erkenntnisse vom 29. März 1989, Zl. 87/01/0249, vom 27. Mai 1987,       Zl. 87/001/0029, und vom 13. Mai 1987, Zl. 86/01/0226).           Da schließlich auch eine Antragstellung nach §8 FrPolG den       im Einzelfall gebotenen Vollzug eines Aufenthaltsverbotes       durch Verhängung der Schubhaft nicht zu hindern vermag,       weil sonst jegliche Zwangsmaßnahme gemaß §5 FrPolG durch       eine Antragstellung gemaß §8 leg. cit. von vornherein       unterlaufen werden könnte,haftet dem angefochtenen Bescheid       auch die behauptete inhaltliche Rechtswidrigkeit nicht an.       Die Beschwerde war daher gemäß § 42 Abs. 1 VwGG als       unbegründet abzuweisen".   (Translation)         "In connection with substantive illegality of the decision       challenged, the complainant alleges that none of the conditions       of Section 5 para. 1 of the Aliens Act is met as the applicant's       mere presence in Austria cannot constitute a direct risk of       criminal conduct.   The complainant fails to appreciate that an       alien who remains for months on Austrian territory       notwithstanding a subsisting residence prohibition can indeed be       seen to be behaving in a way which constitutes a danger for       public peace, order and security, as the factual elements for the       offence under Section 14 para. 1 of the Aliens Act are thereby       met, and there can be no question of the "de minimis" character       of the illegal behaviour (cf. decisions of this court of 29 March       1989, No. 87/01/0429, of 27 May 1987, No. 87/01/0009, and of 13       May 1987, No. 86/01/0226).         Finally, as an application under Section 8 of the Aliens Act       cannot remove the necessity in an individual case of enforcing       the residence prohibition (as every measure of compulsion under       Section 5 of the Aliens Act could thereby be undermined by an       application under Section 8), the decision challenged is not       tainted by the alleged substantive illegality.   The complaint       must therefore be rejected pursuant to Section 42 para. 1 of the       Administrative Court Act".     COMPLAINTS           The applicant alleges a violation of Article 5 of the Convention.         He considers that the Austrian aliens authorities issue detention orders far too freely, in circumstances where there is no necessity for a detention order.         He considers that the one-week period provided for in Section 6 of the Aliens Act in which an alien against whom a residence prohibition has been made must leave the country was not respected. He states that the criminal proceedings which were the reason for the residence prohibition in the first place had been re-opened, so that he could reasonably expect the residence prohibition to be lifted.   The documents concerning the residence prohibition do not form part of the present application and have not been submitted.         The applicant submits that compliance with domestic law is not sufficient to constitute compliance with Article 5 para. 1 (f) of the Convention, but that domestic law must be particularly clear and the discretion retained by States must be particularly narrow.   He that Section 5 of the Aliens Act does not comply with these requirements, nor the requirement of foreseeability.       THE LAW         The applicant alleges a violation of Article 5 para. 1 (Art. 5-1) of the Convention.         Article 5 para. 1 (Art. 5-1) provides, so far as relevant, as follows:         "1.   Everyone has the right to liberty and security of person.       No one shall be deprived of his liberty save in the following       cases and in accordance with a procedure prescribed by law:       ...         f.    the lawful arrest or detention of a person to prevent his       effecting an unauthorised entry into the country or of a person       against whom action is being taken with a view to deportation or       extradition."         The Commission recalls that the lawfulness of detention is a requirement laid down in Article 5 (Art. 5) of the Convention. However, the review of the Convention organs is limited to examining whether there was a legal basis for the detention and whether the decision to place a person in detention may or may not be described as arbitrary in light of the facts of the case (cf. Zamir v. the United Kingdom, Comm. Report 11.10.83, para. 87, D.R. 40 p. 42, 55; Kolompar v. Belgium, No. 11613/85, Comm. Report 28.2.91, p. 13, to be published in Eur. Court H.R., Kolompar judgment of 24 September 1992, Series A no. 235-C).         The Commission finds that there was a legal basis in Austrian law for the detention, namely the detention order of 5 October 1987 under Section 5 of the Aliens Act.   The question remains whether, notwithstanding that legal basis, it can be seen to be arbitrary.         The applicant points to various aspects of the case which, he alleges in substance, indicate that the detention was arbitrary.   In particular, he considers that the one week period of notice provided for in Section 6 of the Aliens Act was not respected, and that as the criminal proceedings which had been at the base of the residence prohibition had been re-opened, the residence prohibition should in any event have been lifted.         As to the question of the period of notice to be given under Section 6 of the Aliens Act, the Commission notes that the provisional detention order of 5 October 1987 recited that the decision of the Administrative Court concerning the residence prohibition had been served on the applicant and his detention became unlawful one week thereafter, on 13 June 1987, and that on 26 June 1987 the applicant had been order to leave Austria within one week.   As the applicant was detained on 5 October 1987, it is not clear in what way the period of one week was not respected.         As to the effect of the re-opening of the criminal proceedings on the detention order, the Commission notes that the domestic authorities relied in the proceedings on the residence prohibition and the applicant's subsequent residence in Austria as the ground for the detention and deportation.   The fact that there may have been some alteration to the state of the criminal proceedings which preceeded the residence prohibition (and details of which have not been submitted) does not affect the legal basis for the detention order, nor can it make the detention arbitrary.         The Commission finds that there was a legal basis for the applicant's detention and that the detention was not arbitrary. Accordingly the detention complied with the provisions of Article 5 para. 1 (f) (Art. 5-1-f) of the Convention.         It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the First Chamber         President of the First Chamber            (M.F. BUQUICCHIO)                        (J.A. FROWEIN)