CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 avril 1994

.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. 20821/92                     by Christoph HABERER                     against Austria          The European Commission of Human Rights sitting in private on 7 April 1994, the following members being present:             MM.   A. WEITZEL, President                C.L. ROZAKIS                F. ERMACORA                E. BUSUTTIL                A.S. GÖZÜBÜYÜK           Mrs. J. LIDDY           MM.   M.P. PELLONPÄÄ                B. MARXER                B. CONFORTI                N. BRATZA                I. BÉKÉS                E. KONSTANTINOV             Mrs. M.F. BUQUICCHIO, Secretary to the 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 9 September 1992 by Christoph HABERER against Austria and registered on 19 October 1992 under file No. 20821/92;        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 is a German citizen, born in 1961. He has studied law in Austria and is a social worker advising drug addicts. Since 1971 he has been residing in Austria.        On 13 March 1988 the Bregenz District Court (Bezirksgericht) convicted the applicant of offences under the Drugs Abuse Act.        On 3 July 1990 the Feldkirch Regional Court (Landesgericht) again convicted him of smuggling and unlawful possession of drugs and sentenced him to twelve months' imprisonment. Part of the sentence was suspended on probation. This suspension was later quashed.        On 23 January 1991 the Bregenz District Administrative Authority (Bezirkshauptmannschaft), in accordance with S. 3 of the Austrian Aliens' Act (Fremdenpolizeigesetz), issued a residence ban for an indefinite period against the applicant, as he had been sentenced to a prison term exceeding three months. The Authority, having also regard to the applicant's administrative criminal record, found that his private interests to stay in Austria were outweighed by the public interest in the prevention of disorder and crime. In this respect the Authority noted in particular that the applicant had no family links in Austria.        Under Section 3 of the Austrian Aliens' Act, administrative authorities may issue a residence ban against any alien who, inter alia, was convicted to a prison term exceeding three months or has been fined more than once for serious administrative offences unless it would contravene Article 8 of the Convention.        On 12 April 1991 the Vorarlberg Police Directorate (Sicherheits-direktion) confirmed in detail the above decision. It also took into account that the applicant had recently been fined for driving his motor vehicle although his licence had been withdrawn.        On 24 February 1992 the Constitutional Court (Verfassungs- gerichtshof)   declined to entertain the applicant's constitutional complaint for the lack of sufficient prospects of success, and referred the matter to the Austrian Administrative Court (Verwaltungs-gerichtshof).        On 20 July 1992 the Administrative Court dismissed the applicant's complaint. The Administrative Court considered that the respective authorities had duly taken the applicant's social and cultural links to Austria into account and correctly found that his private interests were outweighed by his recidivism and his administrative criminal record.        In February 1994 the applicant was still residing in Bregenz.   COMPLAINTS        The applicant complains under Article 8 of the Convention that his expulsion to Germany amounts to a violation of his right to respect of his private life. He refers to his lengthy stay in Austria.     THE LAW        The applicant complains under Article 8 (Art. 8) of the Convention about the residence ban imposed upon him on 23 January 1991.        The Commission recalls that the Convention does not grant foreigners a right of residence in a particular State and that the Contracting States have the right to control the entry, residence and expulsion of aliens (see, Eur. Court H.R., Vilvarajah judgment of 30 October 1991, Series A no. 215, p. 34, para. 102).        However, a residence ban imposed upon a foreigner, may interfere with his right to respect for his private life, and thus, in certain circumstances, give rise to an issue under Article 8 (Art. 8), if it was not in accordance with Article 8 para. 2 (Art. 8-2) of the Convention.        In the present case the measure complained of had a legal basis in Austrian law, namely S. 3 of the Aliens' Act, and was aimed at "the prevention of disorder and crime", a legitimate aim under Article 8 para. 2 (Art. 8-2) of the Convention.        As regards the question whether the interference complained of was "necessary in a democratic society", the Commission recalls that this phrase implies the existence of a pressing social need. However, the Contracting States enjoy a certain margin of appreciation in assessing whether such a need for an interference exists, but it goes hand in hand with European supervision (see, Eur. Court H.R., Funke judgment of 25 February 1993, Series A no. 256 A, p. 24, para. 55).        The Commission finds that the competent Austrian authorities duly took the applicant's personal interests in remaining in Austria into account, namely the length of his residence and his social and cultural links to Austria. They found that, having regard to the applicant's recidivism in drug offences and his further record of administrative criminal offences and the fact that the applicant had no family ties within Austria, the public interest in imposing the residence ban outweighed his interest in staying.        In these circumstances, the Commission considers that there are relevant and sufficient reasons for the residence ban challenged by the applicant. Weighing the applicant's personal interests including his possibly forced return to Germany, and the public interests at stake, the Commission, taking into account the State's margin of appreciation, finds no appearance of a violation of Article 8 (Art. 8) 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)                         (A. WEITZEL)