CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 juin 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. 20840/92                       by Hasan MUTLU                       against Austria         The European Commission of Human Rights (First Chamber) sitting in private on 29 June 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                  G.B. REFFI                  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 19 August 1992 by Hasan Mutlu against Austria and registered on 23 October 1992 under file No. 20840/92;         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 Turkish national, born in 1947 and residing in Selzthal (Austria).   Before the Commission he is represented by Mr. W.L. Weh, a lawyer practising in Bregenz.   A.     Particular circumstances of the case         On 2 April 1991 the Dornbirn District Administrative Authority (Bezirkshauptmannschaft) referring to Section 3 of the Aliens Act (Fremdenpolizeigesetz) imposed a residence prohibition (Aufenthaltsverbot) valid until 2 April 1996 on the applicant.   The District Administrative Authority noted in particular that, between 1985 and 1990, the applicant had been convicted three times of having caused bodily harm, and, between 1986 and 1990, several times of administrative offences, including inter alia, drunken driving.   The applicant had been warned twice that a residence prohibition would be imposed if he committed further offences.   The District Administrative Authority considered that the applicant's stay in Austria endangered the public peace, order and security.   As regards the applicant's private and family situation the District Administrative Authority noted that the applicant had been residing in Austria since 1971 and was running an inn.   It also noted that two of his daughters who were no longer dependent on him were living in Austria and that a third daughter, who was married and had two children was also living in Austria.   It further noted that the applicant's wife was living in Turkey.   The District Administrative Authority however concluded that the applicant's private interests and family links did not outweigh the public interest in imposing the residence prohibition.         On 8 August 1991 the Vorarlberg Security Directorate (Sicherheitsdirektion) dismissed the applicant's appeal against the residence prohibition.         It noted that on three occasions, in 1985 and in 1990, the applicant had been convicted by criminal courts of having caused bodily harm and sentenced to fines between 30 and 60 daily rates (Tagessätze). Between 1986 and 1990 he had further been punished 8 times for administrative offences, inter alia, twice in 1989 for drunken driving, once in 1990 for driving without a driving licence and once in 1987 for having caused a car accident and having failed to report the accident to the authorities.   All these offences were of a serious nature. Moreover, on 11 June 1987 and 9 March 1989 the District Authority had warned the applicant that a residence prohibition would be imposed if he committed further serious offences.   He had, nevertheless, continued to commit administrative and criminal offences.         As regards the applicant's private and family situation, the Security Directorate noted that the applicant had been living and working in Austria since 1971 and had developed social and cultural links to Austria.   The Security Directorate noted further that in 1987 three of his daughters had joined him in Austria.   They were adult, one of the married with two children, the other two working and none of his daughters living in Austria were dependent upon him.   Moreover, the applicant's wife with two more of his children was living in Turkey. The Security Directorate concluded that his private interests and family links did not outweigh the public interest in imposing the residence prohibition as his stay in Austria endangered public peace, order and security.         On 24 February 1992 the Constitutional Court refused to entertain the applicant's complaint and referred the case to the Administrative Court (Verwaltungsgerichtshof).         On 9 June 1992 the Administrative Court dismissed the applicant's complaint.   The Administrative Court found that the fines imposed in the context of administrative proceedings concerned serious offences, justifying as such a residence prohibition.   Therefore, it was not necessary to consider also the applicant's court convictions.   The Administrative Court held further that the respective authorities had duly taken the applicant's private and family situation into account.         In the meantime, the applicant had moved to Selzthal (Tirol). On 30 December 1992 the Lienz District Administrative Authority upon the applicant's request, postponed the enforcement of the residence prohibition until 30 June 1993.   The residence prohibition has not yet been enforced.   B.     Relevant domestic law         According to Section 3 of the Austrian Aliens Act (Fremdenpolizeigesetz), as in force at the relevant time, administrative authorities may issue a residence prohibition against an alien who, inter alia, was convicted by a court to a prison term exceeding three months, or convicted more than once by a court, or fined more than once for a serious administrative offence unless it would contravene Article 8 of the Convention.         According to Section 6 para. 1 of the Aliens Act an alien on whom a residence prohibition has been imposed has to leave Austria within a week after the decision has become enforceable and must not re-enter Austria without a specific permission during the period of the validity of the residence prohibition.   According to Section 6 para. 2   the authority may postpone the enforcement of the residence prohibition on grounds of equity (aus Billigkeitsgründen).   COMPLAINTS         The applicant complains under Article 8 of the Convention that the residence prohibition constitutes an unjustified interference with his private and family life.   He submits that if he had to leave Austria he would could no longer earn his living.   Moreover, he would no longer be able to maintain family contacts with the part of his family living in Austria.   THE LAW         The applicant complains under Article 8 (Art. 8) of the Convention that the residence prohibition would constitute an unjustified interference with his private and family life.         Article 8 (Art. 8) of the Convention reads as follows:         "1.   Everyone has the right to respect of 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 no right of an alien to enter or to reside in a particular country, nor a right not to be expelled from a particular country is as such guaranteed by the Convention.   However, in view of the protection of the right to respect for private and family life afforded by Article 8 (Art. 8) of the Convention, the expulsion of a person from a country in which his immediate family is resident may give rise to issues under this provision (Beldjoudi v. France, Comm. Report 6.9.90, para. 54, Eur. Court H.R., Series A no. 234-A, p. 41).         The Commission recalls further that the question whether family life exists is essentially a question of fact.   Relationships between adults do not necessarily attract the protection of Article 8 (Art. 8) of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties (see No. 10375/83, Dec. 10.12.84, D.R. 40 p. 196).         In the present case the Commission notes that the applicant has been living and working in Austria since 1971 and has developed social and cultural links to Austria.   The Commission notes further that in 1987 three of his daughters joined him in Austria.   However, these daughters are adult, two of them are working and the third is married and has two children.   There is no indication in the applicant's submissions that they are still dependent on him.   Furthermore, his wife with two more of their children are living in Turkey.         In these circumstances, the question arises whether or not the residence prohibition complained of constitutes an interference with the applicant's rights under Article 8 para. 1 (Art. 8-1) of the Convention.   However, the Commission does not have to decide this issue as, assuming that there had been an interference, it was justified under the terms of paragraph 2 of Article 8 (Art. 8-2) of the Convention for the following reasons.         In order to be justified under the terms of paragraph 2 of Article 8 (Art. 8-2) an interference must satisfy three conditions: it must be "in accordance with the law", it must pursue one or more of the aims enumerated in para. 2 (Art. 8-2) and it must be necessary in a democratic society for that aim or those aims.         As regards the lawfulness of the measure complained of, the Commission finds that the legal basis of the impugned residence prohibition was Section 3 of the Aliens Act.   There is no indication that the residence prohibition was not issued in accordance with the relevant law.         Moreover, the impugnated residence prohibition pursued a legitimate aim within the meaning of Article 8 para. 2 (Art. 8-2), namely the prevention of disorder and crime.         As regards the question whether the residence prohibition was "necessary in a democratic   society" for the above-mentioned aims, the Commission recalls that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry, residence and expulsion of aliens (Eur. Court H.R., Beldjoudi judgment of 26 March 1992, Series A no. 234-A, p. 27, para. 74).         In the case at issue the Austrian authorities, when imposing the residence prohibition upon the applicant, had regard to his serious criminal recidivism.   Having been warned twice about the possibility of a residence prohibition, he had nevertheless continued to commit offences.   The Commission further notes that the competent authorities duly considered the applicant's private and family situation.         The Commission, taking into account the margin of appreciation left to the Contracting States, considers that the residence prohibition complained of can reasonably be considered as "necessary in a democratic society in the interest of ... public safety or ... for the prevention of disorder and crime".         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)